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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS:

To file for a dissolution of marriage, either party must have resided in this state for at least six months immediately preceding the date of the filing and have a domicile in New Mexico. Proceeding may be instituted in the county where either of the parties resides. [Based on NM Annotated Statutes 40-4-4 and 40-4-5]

GROUNDS FOR DIVORCE: A divorce may be granted based on the following grounds: a) incompatibility; b) cruel and inhuman treatment; c) adultery; or d) abandonment. [Based on New Mexico Annotated Statutes 40-4-1]

SEPARATION: Legal separation is recognized in NM. If a husband and wife permanently separate, either may start proceedings in the district court for the determination of property division, child custody and support, or alimony. [Based on New Mexico Annotated Statutes 40-4-3]

DIVORCE PROCEDURES: If child custody is contested, the court may appoint a guardian ad litem to appear for and act as a representative for the minor children. The court shall also refer the case to mediation if feasible unless a party asserts or it appears to the court that domestic violence or child abuse has occurred. [Based on New Mexico Annotated Statutes 40-4-8]

PROPERTY DIVISION: New Mexico is a community property state, meaning that property and debts acquired during the marriage shall be split equally, unless the parties reach an agreement independent of a court ruling. Property which is not subject to division is considered separate property, and includes (1) property acquired by before marriage or after entry of a decree of dissolution of marriage; (2) property acquired after entry of a legal separation; (3) property which has been designated as separate property by a judgment or decree of any court having jurisdiction; (4) property acquired by either spouse by gift, bequest, devise or descent; and (5) property designated as separate property by a written agreement between the spouses, including a deed or other written agreement concerning property held by the spouses as joint tenants or tenants in common in which the property is designated as separate property. Any other property shall be considered community property and subject to division. [Based on NM Annotated Statutes 40-3-8]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: Spousal support may be awarded on a rehabilitative, transitional, or indefinite basis. When making the determination of spousal support, the court shall consider: (1) the age and health of and the means of support for the respective spouses; (2) the current and future earnings and the earning capacity of the respective spouses; (3) the good-faith efforts of the respective spouses to maintain employment or to become self-supporting; (4) the standard of living established during the marriage, the maintenance of medical insurance for each spouse, and the availability of life insurance on the person who is to pay support; (5) the duration of the marriage; (6) the amount of the property awarded in the property settlement and the type and nature of the respective spouses' assets and liabilities; (7) any agreements entered into by the spouses in contemplation of the dissolution of marriage or legal separation. [Based on New Mexico Annotated Statutes 40-4-7]

SPOUSE'S NAME: Any resident of this state over the age of fourteen years may, upon petition to the district court in which the petitioner resides and upon filing the notice required with proof of publication, if no sufficient cause is shown to the contrary, have his or her name changed or established by order of the court. [Based on New Mexico Annotated Statutes 40-8-1]

CHILD CUSTODY: When awarding custody, gender of the parent is not be a determining factor. The courts hold that there shall be a presumption that joint custody is in the best interests of a child, but this does not imply an equal division of the child's time between the parents or an equal division of financial responsibility for the child.

When determining contested custody cases, the court determines custody in accordance with the best interests of the child, considering all relevant factors including, but not limited to: (1) the wishes of the child's parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parents, his siblings and any other person who may significantly affect the child's best interest; (4) the child's adjustment to his home, school and community; and (5) the mental and physical health of all individuals involved.

If the minor is fourteen years of age or older, the court shall consider the desires of the minor as to with whom he wishes to live before awarding custody of such minor. [Based on New Mexico Annotated Statutes 40-4-9, 40-4-9.1]

CHILD SUPPORT: New Mexico uses an "Income Shares" model to determine the level of child support. This means that each parent's income is divided by the total of both parents income to determine the percentage of support that each parent is responsible for. The total income from both parents determines the level of support to be paid, based on the child support tables. For detailed instructions, review the information contained in the Child Support Guidelines.

Child support continues until the children's graduation from high school if the children are emancipated only by age, are under nineteen and are attending high school. Child support may provide for maintenance and education after high school of emancipated children pursuant to a written agreement between the parties. [Based on New Mexico Annotated Statutes 40-4-7 and 40-4-11.1]

PREMARITAL AGREEMENT: A premarital agreement must be in writing, signed by both parties and acknowledged. A premarital agreement may not adversely affect the right of a child or spouse to support, a party's right to child custody or visitation, a party's choice of abode or a party's freedom to pursue career opportunities. It is not enforceable if the party against whom enforcement is sought proves that: (1) that party did not execute the agreement voluntarily; or (2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party:

HOW TO ENFORCE CHILD SUPPORT IN NEW MEXICO – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have chosen to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful consideration you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have. These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF NEW MEXICO:

http://www.newmexico.gov