Albuquerque Divorce Law FAQ
The first step to getting what you expect from a divorce is to understand what it entails, what the basic legal processes are, and how best to approach the various aspects of a divorce agreement.
It’s a stressful time and getting answers to the main questions you have can help ease some of the concerns.
Below are a few of the FAQs we get asked about divorce law in Albuquerque.
When a marriage breaks down and a 12-month separation period has not led to the couple resolving their differences, a divorce may be considered as the best option.
In Albuquerque, a divorce may be granted if one party wants to divorce but the other party does not. This is called “no-fault” divorce.
In these cases, the two spouses must reach an agreement on the key aspects of the divorce, most notably:
- The division of property, assets, and debts
- Child custody
- Parenting and visitation rights
- Child support
- Spousal support (if applicable)
If the separation is amicable and there are no children, the two spouses may reach an agreement on the main matters relatively easily.
This can lead to an uncontested divorce, where the terms are negotiated and agreed upon before it reaches the court.
One party, the “petitioner”, files for divorce, which is served to the other party, who has 30 days to respond or get a default judgment entered against them.
Then this application passes through the New Mexico courts relatively quickly and easily, with no major points of contention between the two parties.
The judge can simply sign off on a "Stipulated Final Decree", which is submitted by the divorcing couple. They don’t even need to see the judge.
This is the ideal situation that many couples envisage when they both agree to separate.
However, from experience, we have seen how seemingly “simple” divorces can become far more complex due to a variety of factors:
- Emotions and stress levels are high
- People change their minds
- The influence of family and friends can force a re-think
Uncontested divorces then become contested divorces and can take many months or even years longer.
The cost of a divorce in Albuquerque largely depends on whether it is an uncontested or contested divorce.
Besides the mandatory fee for filing for a divorce in New Mexico, which is $10-20 (depending on the circumstances of the divorce), there are other minor court costs for photocopying, etc.
The most significant costs, in most cases, will be for hiring a divorce lawyer.
In complex, contested divorces, where issues such as spousal support or child access are hotly disputed, multiple court hearings may be required and time-consuming assessments made by professionals appointed by the court.
This contributes greatly to the final costs of the divorce.
The average cost of a divorce case in New Mexico is $10,700 (including $8,400 in attorneys' fees), according to lawyers.com.
However, for high-net-worth couples in New Mexico, the cost of a divorce is around three times this amount.
If expert witnesses and consultants are required (for instance, child custody evaluators and financial analysts), these costs will be higher.
In high-stakes divorce cases, these increased costs are still a fraction of what each party stands to gain or lose from the final outcome.
The intervention of a skilled divorce lawyer can be the difference between being able to plan for the future you want after a divorce and forever regretting the outcome.
For this reason, it is best to hire an Albuquerque divorce lawyer as soon as possible after you decide to divorce.
A divorce lawyer can act as a mediator if you want to discuss disputed areas of the settlement with your spouse and seek an agreement without the need for appearances in court.
If it looks like court intervention will be needed, each spouse should seek representation from different law firms to avoid any conflicts of interest.
Involving your lawyer from the beginning will help you avoid the types of disputes and time-consuming challenges that result in long delays in the divorce process.
Everybody wants a quick solution that is in their best interests.
An experienced divorce lawyer can help you achieve this by laying out the details clearly and unambiguously from the beginning.
They do not get caught up in the emotions and stress of the situation but instead use their professional experience and knowledge of divorce law in New Mexico to push for your best interests.
Many couples spend considerable time discussing who will get which assets during a divorce. The division of property is often one of the main points of contention.
However, the question of debt may need consideration too.
As a married couple, you are legally responsible for each other’s debts. These debts do not just disappear when you are no longer married.
So, your divorce agreement needs to cover issues like:
- Who will remain in the house and be responsible for paying the mortgage each month?
- Who will pay any outstanding credit card debt?
- Who is responsible for paying back any personal loans from the bank?
If you cannot agree on the division of debt or property, your divorce lawyer will submit a dispute to the court, which will use state law rules to decide who is responsible for what.
Both property and debts are decided by New Mexico courts on the basis of community property (as opposed to equitable distribution, which is used in some states).
Community property laws mean that all property (and debts) of a married person is either owned (or owed) equally by both spouses or is the separate property (or debt) of one spouse.
So, if the debt originated jointly, it will be divided equally between the two spouses, and any individual debts will remain the responsibility of each individual spouse.
Equitable distribution would mean that all debts accumulated during marriage are divided fairly, but not necessarily equally. This normally means that the higher wage earner must pay for a larger proportion of the debt.
One area that is sometimes overlooked by divorcing couples when they are dividing assets is pension contributions.
Couples tend to focus on properties, vehicles, savings, and other physical assets. However, one of their most valuable assets may be the pensions they receive upon retirement.
Contributions to 401ks and other retirement accounts need to be assessed and divided.
The best way to approach pensions is generally to divide them based upon their increase in value during the period of the marriage.
This is usually quite a complex calculation that benefits from having an experienced head to look into it.
Because of the “community property” way of asset division in New Mexico, if you were married for 20 years and your retirement benefits had accumulated over 40 years, only half of the retirement account would need to be divided equally.
Each spouse would then be entitled to 25 percent of the pension value at the time of divorce, with the other 50 percent retained by the owner of the pension.
Speak to your divorce lawyer about this important consideration. There may be tax issues and other aspects to consider in your divorce agreement.
After the divorce agreement is signed by a judge, a domestic relations order (DRO) is usually required to divide the accounts and for payments to be made directly to each of the divorced spouses.
It is possible to reach an agreement without the need to hire lawyers but all divorces must be signed off by a judge before they become valid.
This, plus the potential for disputes to arise even in amicable divorces, means that it is always advisable for couples to hire lawyers as early as possible in the process.
This helps to avoid delays and expense with the final divorce settlement.
Child custody is one of the most complex areas of a divorce to reach agreement on, because of the close natural bonds between parents and their children, and the emotions involved.
If no agreement is possible without court intervention, a custody evaluation may be ordered by the courts in Albuquerque.
This is to help decide on the best course of action for the children. It is the interests of the children rather than the parents that are paramount here.
During a court-ordered custody evaluation, a third party will spend time with the parents and the children, as well as other family members if necessary, to assess the potential living arrangements for the children.
This process can take anywhere from six months to one year.
The “third party” may be a mental health expert, counselor, or someone related to community services.
The three types of custody evaluations in New Mexico are:
- Family court clinic, which provides mediation and evaluation through psychologists and counselors.
- Guardian Ad Litem (GAL), which is used in cases of great conflict, where an attorney is appointed for the children who must actively defend their best interests.
- 706 experts, which are private custody evaluators that either the court or families may employ (often because they want to challenge a court decision).
Evaluators provide recommendations to the court about the custody arrangement that is best for the children. The courts value their opinion highly when making their judgment.
For the parents, court-ordered evaluations can be a stressful and invasive experience. You may not agree with the recommendations made and this can lead to even more conflict with the other spouse.
Your attorney can help reduce the stress and confusion in such cases.
The New Mexico courts will always defend the best interests of the children in any divorce agreement.
Consequently, there are two types of child custody ruled upon: physical custody and legal custody.
- Physical custody – this details the amount of time that the children spend with each parent, who is responsible for the children, and for how long. It usually depends on the state of mental and physical health of the parents, the age of the children, parental relationships with the children, employment demands, etc.
- Legal custody – who has the right to make decisions about the upbringing, education, healthcare, and moral education of the children?
In most divorce cases in Albuquerque, the court’s preference is for joint legal custody so that both parents are involved in making the key life decisions for their children.
Legal custody and physical custody are treated separately by the court, so it is possible for one parent to have sole legal custody but share physical custody.
The court will make a decision on child support based upon the facts and the evidence available at the time of the divorce.
If circumstances change, it is possible to modify the child support arrangement.
However, it is important to note that this will not happen automatically, nor will it happen at the instigation of the court.
You will need to petition the court for a motion in order to modify the child support order.
A court hearing officer will then reassess the case and make recommendations to the judge. ensuring that any modification remains in the best interests of the children.
Hence, your lawyer will normally need to drive this process.
The most common reason for a change in circumstances that might warrant a review of child support is a permanent change in the employment status or earnings of one or both parents.
Call a Divorce Attorney in Albuquerque for Assistance
A skilled Albuquerque divorce lawyer can answer all your divorce FAQs and help you make the best decisions for your own future and that of your family.
During such a stressful time, it helps to be able to call on professionals who understand your situation.
At Legal Solutions of New Mexico, we help divorcing couples work through various disputes or issues. It starts by scheduling an initial consultation by calling 505-445-4444 or emailing us.