FAQ

Free New Mexico Divorce and Free New Mexico Family Law Information from a Lawyer Attorney in Albuquerque, Bernalillo County

Residency

In order to file for divorce in New Mexico, either you or your spouse has to have been a legal resident of the state for 6 months before filing. Your representations to the Court in a divorce or family law proceeding must be sworn to by you under a Solemn Oath to tell the Truth.

How fast can a divorce be done in New Mexico?

Many states have a mandatory waiting period. The public policy behind these waiting periods is to encourage reconciliation of a marriage instead of divorce. New Mexico does not have a mandatory waiting period. Therefore, in an agreed or uncontested no-fault divorce, it can be finalized the day after filing - in one day. The Court may waive filing fees upon the filing of a truthful Affidavit of Indigency, which The Childress Law Office will also assist with in appropriate cases. You should be on public assistance, disabled, bankrupt or supporting multiple dependents without help before requesting an Affidavit of Indigency.
 
In uncontested or agreed no-fault divorce or other family matters, The Childress Law Office makes every effort to have your case finalized as soon as possible. This requires the cooperation of both parties. In an uncontested or agreed case, where both parties have signed all the necessary legal documents, neither party is required to go to Court. The Childress Law Office will do it for you in Bernalillo County.

The only way for a divorce or other family case to be finalized within a month or so of filing WITHOUT an agreement or cooperation from the non-filing spouse or other party, is by a “Default Judgment”. See more about this below under “ What is a Default Judgment?”

Name Change

A spouse CAN, as part of a divorce, get a name change to a “prior used name” such as a maiden name. The Childress Law Office will obtain such a name change for you or your spouse, if desired, at no extra charge. But we must be advised of this request promptly. If you want a name change to a completely new name that you have never used before, your request with the Court must be detailed, sworn and verified. This law is primarily intended for the benefit and protection of creditors.

What is a “Qualified Domestic Relations Order”?

We refer to these by the acronym “QDROs”, pronounced “quadro” or plural “quadros”. If you believe or have heard that you may need a QDRO, you can thank the United States Congress for passing a law known as the Employees’ Retirement Income Security Act (“ERISA”). Congress enacted ERISA as a “tort reform” measure to protect retirement, pension and health-care plans from lawsuits. Sidney Childress has actually sued big corporations with this law, in federal court, for trying to cheat employees out of previously promised benefits.

The United States’ Supreme Court has called the scope of ERISA “deliberately expansive”. Basically, ERISA provides that no plan protected by it is bound to comply with any state court order. Divorces are granted in state court. Therefore, ERISA allows the Administrator of a retirement or pension plan to legally ignore your state-court award of community property. ERISA Plan Administrators will abide by the Divorce Decree and disburse a retirement or pension award directly to a former spouse only if a separate, special type of Order is entered: a QDRO.

Every Plan Administrator, again thanks to ERISA and the United States Congress, gets to dictate their own specifications for how the QDRO must be drafted. ERISA subjects Plan Administrators to criminal liability if they mis-handle an ERISA plan. So try to understand if they are sometimes nit-picky and difficult to work with.

For a QDRO, a process of drafting, review and pre-approval occurs between the divorce attorney and the Plan Administrator, before a final form of QDRO is agreed on and entered by the state divorce court. This can be an unpredictable, time-consuming process.

The Childress Law Office charges $500 for the entry of a QDRO. We recommend that, if possible, you look for ways to fairly divide your estate without a QDRO, such as giving one spouse more of another asset instead of part of an ERISA-protected plan. When The Childress Law Office is hired, our job is to help clients explore their options and make the best plans possible under the circumstances.

Marital Separation or Property Settlement Agreements. Can I get a “legal separation” in New Mexico?

Yes. The Courts of New Mexico will grant, rather than a divorce, a decree of legal separation.

A “marital separation” or “property settlement agreement” is also simply another form of private contract between 2 people. They are not necessary for a divorce but can be helpful in various circumstances. Some people attempt to avoid judicial intervention by negotiating favorable separation agreements. This can be effort well spent. These type agreements include “pre-nuptial agreements” and “post-nuptial agreements”.

New Mexico courts will approve agreements between spouses for the separation or “partition” of property as long as these agreements are properly drafted, as long as they are not unconscionable or made under any type of duress, coercion or undue influence.

Tax Deductibility of Attorney’s Fees

The general rule is that attorney’s fees incurred in a family case are personal expenses and not tax deductible. There are a few exceptions.

When deductible, attorney’s fees are treated as “miscellaneous itemized deductions”. They are deductible only to the extent they exceed 2% of the taxpayer’s adjusted gross income. They cannot be taken into account in computing the alternate minimum tax. In order to take advantage of the 2% rule, all the fees must be paid within one tax year.

Attorney’s fees and other litigation costs are deductible to the extent they are incurred to produce or acquire taxable income.

Because spousal support is taxable income, the fees incurred in obtaining it, or in collecting delinquent spousal support, are deductible. An accountant’s fees may be tax deductible to the extent the accountant’s work involved determining the parties’ actual cash flow, so a Court could determine an amount of spousal support. Fees for other experts, like vocational counselors, may also be deductible to the extent they were used to obtain an order for spousal support.

Attorney’s fees incurred to obtain other taxable income, like an interest in a pension or retirement plan, royalties, residuals, and etc., may also be tax deductible. Fees incurred in establishing or defending title to property may be capitalized and added to the basis of property. Fees are also deductible to the extent they are paid for tax planning advice.

In the event the IRS disputes deductions of attorney’s fees or litigation expenses, the taxpayer will need an allocation letter from his or her attorney that expressly itemizes the deductible and non-deductible fees and expenses.

Other Tax and Estate Planning Issues Often Arise in Family Cases

The most common are answered this way: child-support is not taxable income to the “Obligee/Payee” (the person receiving it), and is not tax-deductible to the “Obligor/Payor” (the person paying it). Spousal support is the opposite. Spousal support is taxable income to the recipient. The person paying it can deduct.

At The Childress Law Office, we look for ways to benefit clients with tax and estate planning issues. For example, consider the differing tax consequences based on how the tax exemptions for the children are allocated.

Sometimes tax planning can be done by using the tax deductibility of attorney’s fees to allocate fees between spouses. If (by way of example only) Husband pays to Wife $25,000 as spousal support and Wife pays her attorney’s fees from this money, Wife may be able to deduct a significant portion of her fees and both parties benefit. Doing the property agreement this way gives the Husband incentive to pay Wife’s legal fees and expenses by making them tax deductible as spousal support. This is just one example and for purposes of illustration only.

Military Issues

In 1982, the United States Congress passed the “Uniform Services Former Spouses’ Protection Act”. This law authorized state divorce courts to treat military retired pay as community property.

New Mexico is a community property state. The general rule is that a portion of military retired pay will be awarded to the former spouse, as a percentage or fractional amount of the pay. The actual amount awarded to a former spouse is formulaic based on the length of the marriage and the amount of time the service-member was in the military during the marriage.

In a divorce involving military retired pay, especially in counties around military bases, judges are likely to question any property division that does not include an award of retired pay to a former spouse.

Are former spouses entitled to use the Commissary and BX? Yes. When the Former Spouses’ Law was initially passed, it specified that the former spouse must not be married and the marriage to the retiree must have lasted at least 20 years during the retiree’s active service.

What about medical care for former spouses? When the Former Spouses’ Law was initially passed, it specified that a former spouse who had not remarried and who was married for at least 20 years while the servicemember was on active duty, is eligible for permanent medical care at military facilities.
                         
A current controversial issue about military retired pay is whether the portion that is denominated “disability” pay should be paid as part of the award to the former spouse.

Can I get my name off the mortgage if I give my spouse the house?

Your state divorce court cannot waive or stay your lawful debts. If you signed any type of promissory note or made any agreement for debt during your marriage, you can still be held legally liable for that debt even if the Divorce Decree specifies that your spouse is obligated for that debt. Your remedy for violation of your divorce agreement is against your ex-spouse.

If you are concerned about either you or your spouse having to file for bankruptcy in the future, you should consult with an attorney about ways to secure your divorce in a way that avoids such a situation.

For divorces where one spouse conveys the house to another, this office will provide the basic real estate documents necessary to secure the agreement of the parties as well as possible. All such documents are in writing and based on the information provided by the parties. We recommend the Divorce Decree specify that the person getting the house has to refinance the mortgage within x number of months, based on the agreement of the parties, or be subject to a forced foreclosure sale.

The Childress Law Office is available for enforcement actions under the New Mexico Family Statutes, including collection of past due and owing spousal support or alimony, retired pay, child support, and agreed-upon or court-ordered division of property.

Child Custody Modification

A “child custody” order, whether joint or sole, regarding “legal custody” and “actual, physical custody”, can have to last 18 years. Try as it might, the Family Court cannot predict or provide for every change in circumstances that can occur in this period of time. As children grow older, they become “teenagers” with wills and desires of their own. In short, child custody orders can and often are modified or changed over the course of time. Often this is accomplished by agreement of the parents, such as where a son or daughter decides he or she wants to try living with the other parent for a while. This is just one example.

Has the parent with the court-ordered right to establish the domicile of the child voluntarily relinquished the primary care and possession of the child for 6 months? Do you need GRANDPARENT’S RIGHTS ? Call us!

The Childress Law Office is available to assist parents with the the proper drafting, filing and service of legal documents necessary to effectuate their agreed upon or uncontested child custody changes or conservatorship modifications.

What is a Default Judgment

The only way for a divorce to be finalized within 30-61 days of filing WITHOUT an agreement or cooperation from the non-filing spouse, is by a “Default Judgment”. To answer the question, you should understand a little about a concept called the “jurisdiction” of the Court, a complicated subject, most of which is beyond the scope of this website.
But in order to provide information to the visitors of this website, we will explain it to the extent it pertains to: How a divorce or other family case can be concluded without the agreement or cooperation of the other party.

Before any court can take an act that effects people’s lives in a family case, it has to have “jurisdiction”. This is required by, among other things, the Due Process Clause of the U. S. Constitution. Our courts proceed on the principal that all involved must have “due process” - a concept of fairness and proper procedure.

An agreed or uncontested divorce is accomplished by both parties voluntarily submitting to the jurisdiction of the Court. The person filing does so by filing. The other party must sign and file papers that indicate to the Court this person does not object to the jurisdiction of the court on any legal or factual basis.

What if the non-filing party will not cooperate and voluntarily submit to the jurisdiction of the Court?

They must be in-voluntarily submitted to the jurisdiction of the Court. The Court must issue an official court document called a “Summons”, “Notice, “TRO” or “Citation” for example. This document must then be properly delivered or “served” on the non-filing party, usually in person delivery by a Sherriff or Constable. If the non-filing party does not respond within the time limits specified by the Court on the official court document, the Court can then proceed and grant a Divorce Decree by “default”. This is considered the minimum “due process” required. This is how a divorce can end on the 30-61 day after filing even if one party will not cooperate.
Ignoring an official court notice like a SUMMONS or a Citation is an act of negligence. Many people don’t realize this until its too late.

The issuance and service of such notices are sometimes necessary next steps that must be taken. Even if a case is not entirely uncontested, sometimes it can still be resolved with minimal difficulty. We try to go the extra mile at The Childress Law Office, and if we are not able to accomplish the result you want on an agreed or uncontested basis, we remain available to assist you step by step.

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