Ten Bad Divorce Decisions To Avoid During a Divorce Case in Albuquerque, New Mexico

We all make mistakes.  Take a look at your grade school pictures if you believe that you are somehow immune to bad decisions. That shirt. Those black suspenders. Don’t even get me started on the mangled and self-inflicted haircut.  They all seemed like bulletproof ideas at the time – right?

 

 

Sometimes what feels so right can be all wrong.

Similar to life, there are a number of bad decisions that may feel right when one is facing a divorce, but are completely wrong. Let’s take a look at ten bad divorce decisions in Albuquerque, New Mexico that should be avoided when confronted by a divorce:

 

1.    Reacting Aggressively

 

Every breakup and divorce entails a certain degree of tension and conflict. Generally speaking, happy and harmonious relationships don’t end in divorce case. Nevertheless, any tension and conflict should never spillover into threats, harassment, stalking, insults, or any other acts that rise to the level of abuse.

Remember that the insulting texts that you sent, and the statements that you email or post on Facebook will come back to haunt you.

In Albuquerque, New Mexico, the simple act of touching a person in a rude, angry or insolent manner can result in criminal, domestic violence charges being filed. Any degree of touching, or causing an object to touch a household member is enough. If the police are called, they will determine who is the “primary aggressor” and in Albuquerque that person will be booked into the Metropolitan Detention Center.

A conviction for domestic violence permanently stains one’s record, and forever strips one of the right to own or possess a gun. For more information on how domestic violence affects your right to own or possess a gun, click here: Domestic Violence & Gun Rights in New Mexico.

Moreover, even when criminal charges are not filed, any threats, insults, physical abuse, stalking or harassment can be used as ammunition to file a Petition for Order of Protection (Restraining Order). New Mexico courts tends to lean on the side of caution and often find the necessary probable cause to enter a temporary order of protection, setting a hearing within ten days.

When children are involved, this temporary order can grant the requesting parent sole custody of the children until the matter is resolved by a Special Commissioner. After the temporary order is issued and before the hearing is ultimately held, the accused party can be prevented from having any contact or communication with their children. If the Special Commissioner finds that an act of abuse occurred, the temporary order can be extended, with the Special Commissioner dictating the child custody, time-sharing arrangement, and often additional counseling requirements – during their 6 months of jurisdiction over child custody and parents time-sharing.

If granted, the Order of Protection can also include findings of abuse that can follow one downstream when attempting to achieve more time with children in the divorce case.

 

2.    Forgetting the Kids

 

When facing a divorce case, become more involved with your children – not less. Becoming more involved with your kids is not only better for your children’s overall well-being, but also creates a “status quo” that will largely determine what child custody and parents time-sharing arrangement the court will award in the event that both parties to are unable to reach an amicable agreement.

The best predictor of the future is the past, and judges generally look at family history to determine what is best for the children. New Mexico courts generally like to see children stay in the same house, neighborhood and school – if possible. New Mexico courts believe that consistency is the best policy for young children, and are reluctant to alter the “status quo,” or what the parents have done in the past. New Mexico courts reach decisions based on what it believes is in the best interests of the children, and often this decision prevents uprooting the children from a lifestyle that they have grown within. Ultimately, New Mexico courts tend to believe that children blossom in the community where they are planted.

If you’ve always been involved with your children and your ultimate goal is primary custody of the children after the divorce, then become even more involved with the children now. Learn your children’s schedules. Get involved with their extra curricular activities, appointments, school work, and day-to-day life. Spend as much time with your children as possible. This not only helps your children’s future, but also helps your future time with your children.

 

3.    Immediately Moving Out of the Marital Residence

 

Breakups and divorces are hard. In fact, divorce perennially ranks at the top of the list for the most difficult life experiences that one will ever encounter. Living in the same area with the person with whom you’ve fallen out of love can be awkward at best, and seemingly unbearable at worst. Nevertheless, when children are involved, it is a horrible decision to immediately move out of the marital residence. This is a bad decision because it essentially creates a “status quo” where the parent remaining in the home becomes the primary care-giver, placing that parent in the position to be awarded primary custody of the child or children.

“Status quo” is a phrase that New Mexico courts use to describe the parents time-sharing arrangement that was in place prior to a court ordered custody and parental visitation schedule being entered. In situations where both parties are unable to agree on the terms of a Parenting Plan (outlining the custody & parental visitation schedule) the court makes the final decision on what time-sharing schedule it believes is in the “best interests of the child.” Generally speaking, the court opts for consistency and generally believes that continuing the “status quo” is best for the child. Therefore, expect the judge’s decision to be similar to the time-sharing arrangement that took place prior to the divorce. Because of this fact, by moving out of the marital residence and leaving the children with the other parent, you are creating a “status quo” that could become difficult to change in the future.

Another problem with immediately leaving the marital residence is that in New Mexico, if one party leaves the house before a divorce is filed and a Temporary Domestic Order issued, it will be very difficult to get back into the house if the locks have been changed and/or the other party says “no.” In this situation, one would be forced to file a Motion for primary use of the home.

On the other hand, if one stays in the home after the divorce is filed and a Temporary Domestic Order is issued while the individual is still in the home, the other party will be forced to file a Motion for exclusive use of the marital residence.

As discussed above, in some situations one party will attempt to file a Petition for Order of Protection – claiming that an act of abuse has occurred – in order to force the other person out of the marital residence. This is prime example of why one should never react violently or aggressively during a divorce. Acting in a manner that could be defined as an act of “abuse” under the family violence protection act, provides the other party with a card to play that could stack the deck in their favor.

 

4.    Thinking Emotionally and not Financially

 

In some divorces, one or both parties let their emotions short-circuit logical decisions. Maybe one person was cheating, and now the other side wants to even the score. Possibly one party was very controlling during the relationship and now wants to use the legal system to continue their pattern of control. In some instances, one party feels wronged – for whatever reason – and is willing to sink their own financial situation, in an effort to cause both sides to go down with the ship.

A common example of one or both sides thinking emotionally rather than financially is spending thousands to fight over property worth a few dollars. Spending thousands of dollars in legal fees to fight over items that can be replaced at pennies on the dollar is not a financially savvy decision. Savvy?

Another example occurs when one side rejects settlement offers that are better or equal to what one would expect to receive under New Mexico law. In these situations one rejects the reasonable offer, opting instead to put all of the issues into the judge’s hands for the final decision. Generally speaking, an overly contentious approach prolongs the time and pain of divorce, increases legal fees, and can have long-term emotional consequences for everyone involved – primarily the children.

On the positive end of the spectrum, one ends up with a substantially similar outcome relative to the settlement offer, but adds the time, expense, and stress of a trial on the merits. On the negative end of the spectrum, one runs the risk of not only receiving a worse final judgment relative to the reasonable settlement offer, but also of incurring the additional time, stress and expense of a trial on the merits – and the potential of the other side being awarded attorney fees for the cost of trial.

At times a trial on the merits is unavoidable – especially when the other party is making unreasonable demands that are not supported by the laws of New Mexico. However, in many instances, the benefits of settling the terms of the divorce outside of court outweigh the potential costs of moving the case forward to a trial on the merits. A trial takes the power to decide your future out of your hands and places that power into a judge’s hands. This same judge generally knows little about you and your family, has an overflowing docket, is continually pressed for time, and could be having a horrible day for any number of reasons. Because judge’s have wide discretion to determine the final outcome of the case, placing the final decision solely into the judge’s hands can be a horrible decision For more information on the costs and benefits of trial, click here to read my blog: Should I Bring My Case to Trial?

 

5.    Pretending that the Divorce Will Go Away

 

Not all divorces are the result of a considered decision between two parties. Sometimes one person is in denial that the relationship has reached the end of the road and refuses to take action with the ultimate hope that the parties will reconcile. In some instances the divorce can be cancelled. For more information on withdrawing a Petition for Dissolution of Marriage, click here: Cancelling a Divorce in Albuquerque, New Mexico.

I’m certainly not saying that every Petition should end in a divorce case, and the parties should never reconcile. However, I am saying that the strategy of complete non-action is generally never a good idea. This strategy could ultimately lead to the court granting a default final decree, whereby one party receives everything that they have requested. Although a default final decree can sometimes be set aside – for a number of reasons and if the request to set aside is filed in the requisite time – it is never a good idea to rely on the court setting aside the final decree.

Take action in your divorce. Never pretend that the divorce will simply go away.

 

6.    Treating Your Lawyer like an Annoyance

 

Divorce is a team sport. A divorce case is unlike a criminal case or personal injury case, where the lawyer can request and complete discovery largely without the client’s interaction. In the typical divorce case, both parties will need to work with the lawyer to complete the interrogatories and request for production of documents requested by the opposing party. Failing to provide these documents on time, or providing only some of the necessary documents, can prejudice your case in the short-term and long-term.

Unfortunately, some clients either refuse to provide the information that has been requested over and over and over again, or must be stalked and harassed into providing any information. Maybe the person stalling the process doesn’t want a divorce. Possibly this person is in denial and believes that dragging out the process will stop the divorce. In reality, the act of dragging one’s feet on the discovery process often results in the overall divorce costing far more than would be the case if the information was provided without difficulty.

 

7.    Rolling Over Because of Guilt

 

We’ve already covered that it’s a bad decision to unnecessarily litigate a divorce case, spending thousands on legal fees for items worth pennies. It’s also a bad decision to fall on the opposite end of the spectrum, giving the other party more than they deserve because of guilty feelings. In some situations one party feels bad about how or why the relationship ended and feels compelled to give more than the other party deserves because of nagging guilt.

Bad decision.

New Mexico courts do not care why the relationship fell apart. New Mexico is a “no fault state,” and one is entitled to the same distribution of assets and liabilities no matter who is “responsible” for the divorce – provided that martial funds were not misused.

In this same vein, never simply sign divorce papers without first consulting with an experienced attorney. In some instances, a person comes into my office after signing divorce papers on a whim, or signed the divorce papers due to emotional manipulation, without having the opportunity to first speak with an attorney. Although it is possible to set aside the divorce – for several reasons and if done within a certain period of time – the process of overturning the divorce will likely lead to the divorce costing significantly more than if the person simply consulted with an attorney before signing the papers.

Do not let guilt lead you down the road of making bad divorce decisions. Do not give the other person more 401K, bank accounts, or any other assets or property because of guilt. Do not take more debt than you are required to assume because you feel bad about why the relationship ended. At an absolute minimum, always consult with an attorney before signing papers that could substantially affect the life that you will live after the guilty feelings have passed away.

 

8.    Waiting for the Other Person to File for Divorce

 

There are many reasons why it’s a bad decision to wait for the other party to file a Petition for Dissolution of Marriage. The first reason is that it gives the other party time to dump money out of jointly held bank accounts and/or rack up credit card debt before the Temporary Domestic Order is issued. As discussed above, the Temporary Domestic Order freezes the status quo and prevents either party from removing money from accounts. In this same vein, filing first allows one to take the matter into their own hands and dictate when the Temporary Domestic Order is entered, preventing any changes in the status quo, such as changing locks to the marital residence, removing a party from insurance, accounts, removing children from the state, etc.

Another important reason for filing first is that it can help prevent the other party from claiming that an act of abuse has occurred, blind-siding one with both a Petition for Dissolution of Marriage, and a Temporary Order of Protection that requires one to leave the marital residence, or prevents communication with one’s children, based on claims of domestic abuse. Ultimately a claim of abuse loses weight and credibility when it is filed after one is served with divorce papers. As discussed above, when a temporary order of protection is granted, forcing a parent to leave the marital residence, this act of leaving the marital residence can create a “status quo” that leads to the other parent having a better chance of being awarded primary child custody of the children.

Never wait for the other person to file first after they have left New Mexico. Many times parties will separate and one may move to another state. Maybe the person remaining in New Mexico still has the flame of love in their heart and is hoping that the parties will reconcile. No matter one’s reason for failing to file first, once the person that left New Mexico has lived in the other state for six consecutive months, they have the potential to file a Petition for Dissolution of Marriage in that state. This act could force one to litigate the divorce in the other state, which could have laws benefitting the other party. Moreover, the divorce taking place in another state could result in the additional time and expense of requiring one to retain an attorney in the other state, and travel to that state for hearings and trial.

Additionally, if children are involved, and one allows the other person to reside in another state for six consecutive months with the children, that state becomes the “home state of the children” and will have jurisdiction to decide any issues regarding child custody, parents time-sharing and child support. On the other hand, if one files in New Mexico first, the Temporary Domestic Order prevents the other person from leaving New Mexico with the children without express written consent. In other words, the Temporary Domestic Order will prevent both parties from removing the child from New Mexico.

 

9.    Not Following Court Orders

 

Court order are not recommendations or suggestions – they’re orders. Court orders should be treated like they’re being screamed at you by a Drill Instructor that’s foaming at the mouth.  Unfortunately, in some divorces one party chooses to march to their own drum, rather than following the court’s clear and unequivocal order. Maybe the person never read the court order and doesn’t even know that their actions are in direct violation of the order. Possibly the person believes that they have the gist of the order and have followed it “enough.”

No matter the reason, failing to follow a court order can have many negative effects. Best case scenario, the judge will demand a reason for violating the court order, and if they believe that the reason was in “good faith,” the judge might admonish the individual for failing to follow the order, and lecture the person about subsequent violations. Somewhere in the middle, the judge could award the other party their fees for bringing the violation before the judge’s attention. On the negative end of the spectrum, the judge could hold the party in contempt of court, order attorney fees, dramatically alter the status quo, and possibly even incarcerate if the violation is especially egregious.

Long story short – always follow court orders.

 

10.    Loss Lips Sink Ships

 

Divorce is similar to criminal law in one important way – anything that you say can and will be used against you. Every picture and post that you publish on Facebook, or on any other social media for that matter, could end up as an exhibit being introduced into evidence against your interests. The pictures of you partying with friends and posts about how drunk and/or high you were on Saturday night could destroy your chances of having primary child custody.

The insulting and/or threatening text message that you sent, laced with four letter words, could be used by the Special Commissioner to find that an act of abuse occurred, leading to a permanent order of protection being entered against you.

Possibly the Special Commissioner is a rookie that doesn’t know that the term “permanent” is an illusory word, and enters the Order of Protection for ten years, rather than the typical order of six months to one year. After the Order of Protection is entered the person then discovers that the Order prevents the person from owning or possessing a firearm while the order is in place, thereby preventing the person from engaging in a job that requires a firearm.

Every text message and email that you send could be introduced as evidence against you.

Remember – everything that you write on the internet, text messages, and email can come back to haunt you.

 

(505) SANCHEZ IS HERE TO ANSWER ALL OF YOUR QUESTIONS ABOUT TEN BAD DECISIONS TO AVOID DURING A DIVORCE CASE IN ALBUQUERQUE, NEW MEXICO

 

Do you still have questions about ten bad decisions to avoid during a divorce case in Albuquerque, New Mexico
?  Divorce cases in Albuquerque often require the experienced hand and knowledge that comes with years of courtroom practice.  Matthew Legan Sanchez has the experience needed to handle your unique divorce case.  Sanchez can be reached by calling (505) SANCHEZ.