New Mexico Attorney Blog
Posts Tagged ‘Divorce’
Wednesday, July 7th, 2010
All states provide a statutory basis for the dissolution of marriages by their courts. The basis for dissolving a marriage will vary from state to state. In the State of New Mexico there are four statutory grounds for divorce. One of the four grounds for divorce is what is typically referred to as the no-fault provision and the other three require a finding of fault by the other spouse. The relevant portion of the statute reads: “…, a district court may decree a dissolution of marriage on any of the following grounds: A. incompatibility; B. cruel and inhuman treatment: C. adultery; or D. abandonment.”
“Incompatibility” exists when there is such discord or conflict of personalities that the legitimate ends of the marriage relationship have been destroyed preventing any reasonable expectation of reconciliation. This provision is typically referred to as the no-fault provision. In other words, if one party testifies that from their perspective that the parties are incompatible, a judge may grant a divorce. Experience dictates that a party presenting contrary testimony that the parties are compatible will not be able to defeat the petition for dissolution. The very fact that the two parties have differing views on whether they are incompatible appears to support the proposition that they are “incompatible.”
As to the remaining three grounds B, C and D, a party who makes any of these allegations must prove the grounds by a preponderance of the evidence. In the area of adultery, it is sometimes very difficult to prove actual “sex outside of marriage” without an admission of one of the parties or “being caught in the act”. Cruel and inhuman treatment is also fraught with some difficulties where there are mild behavior patterns or interaction between the spouses that constitute acts of emotional, verbal, psychological, social abuse, etc. Such behavior in marriage without further physical evidence, may not constitute cruel and inhuman treatment. Abandonment may be one of the easier to prove since clearly one party has chosen to leave a marriage and most often cannot be found for service of the petition.
Most divorces are filed under grounds of “incompatibility” or the no-fault provision even where there may be an indication that one or more of the fault provisions are present. There can be some very clear advantages and disadvantages in choosing your grounds for filing a divorce action and each situation is very different. You should consult an attorney before deciding which ground or grounds for dissolution of your marriage are best for your factual situation.
Wednesday, June 16th, 2010
Parents have a difficult time talking about their divorce with their children. Some people want to speak ill of their ex-spouse. While doing this may make you feel good, doing it in front of a child can hurt the child, adding to a child’s fear and insecurity. It is important for both parents to meet with the child and explain in a very calm manner what changes are about to take place. You must jointly plan what you are going to say to your child ahead of time. Ask the child age appropriate questions and let them talk about what they are feeling. You must take all of their questions seriously. It is important to recognize that the divorce will have an effect on the child’s daily routine and future.
It is important that you do not discuss the details of the divorce in front of them because this can lead to unnecessary arguments. When talking about your ex spouse or partner, make only positive comments and refrain from negative or derogatory comments in front of the child.
Divorce can lead to many emotional and physical problems for children. Your child may feel that they are the reason that the two of you are separating. They can feel that both parents are abandoning them. Children can develop physical illnesses because of the divorce. They need the reassurance of both parents that the divorce is not their fault and that the two of you still love them.
Preschoolers have a very hard time adjusting to a divorce. If the divorce is hostile, they are at a greater risk of becoming “bullies” or being the subject of abuse. At this age group, males have a harder time with the separation anxiety than females. Also, during the adolescent years, it is a smart for both parents to work together. This can minimize the potential manipulation by preteens and teens of both parents, in addition it will help to curb potential rebellious attitudes of teens. Teens that cannot lean on parents or family members for support are more likely to abuse alcohol and drugs.
In any separation or divorce, it is critically important that both parents shower their child with love, discipline, kindness and emotional support, giving them ample opportunity to express their concerns. You don’t need to become a Disney Land Dad or Recreation and Amusement Mom to express love and support. Teaching a child how to love, relate to others, create a healthy work ethic and live in community are gifts that any parent can give to their children regardless of the parent’s socio-economic status and the divorce or separation. Throughout the divorce, separation and all of the years following a division in a family, parents must always place the child’s best interest above their own interests.
Saturday, April 10th, 2010
1. Emphasize that the divorce is entirely the parent’s decision.
2. Explain that the divorce is not the child’s fault.
3. If true, say everything was done to preserve the family/ relationship.
4. If true, tell children that the decision will not be changed (don’t give false hope).
5. Be open to your child’s questions. If they don’t ask, don’t assume that everything is OK.
6. Be prepared to repeat explanations to children over time.
7. Reassure the children that their needs will be met.
8. Explain the decisions made as to when the children will see each parent.
9. Try to avoid major moves for the children.
10. Reassure children that both parents love them and will continue to see them.
11. If a parent is not involved, try to find a person who can help fill the gap.
12. Try to spend individual time with each child.
13. Do not use the child as a messenger or spy to get even with other parent.
14. Do not force or ask a child to take sides. Don’t bad mouth the other parent.
15. Remember birthdays/holidays. Preserve some traditions and start new ones.
16. Attend special activities in which the child is a participant.
17. Keep promises.
18. Respect generational boundaries and don’t make your child a confidant.
19. Maintain discipline. Love your children, but set reasonable limits.
20. Develop a plan to resolve conflict with the other parent so that the child never sees hostility between the parents.
Wednesday, March 24th, 2010
“You never listen to me” is a complaint heard as often from children as parents. Good communication helps children and parents to develop confidence, feelings of self-worth, and good relationships with others. During any conflict in relationships, especially in divorce or separation, parents must listen and communicate effectively with their children. Try these tips:
* Teach children to listen…gently touch a child before you talk…say their name.
* Speak in a quiet voice…whisper sometimes so children will have to listen…they like this.
* Look a child in the eyes so you can tell when they understand…bend or sit down … become the child’s size.
* Practice listening and talking…talk with your family about what you see on TV, hear on the radio, or see at the park or store. (Talk with your children about school and their friends.)
* Respect children and use a courteous tone of voice. If we talk to our children as we would our friends, our youngsters may be more likely to seek us out as confidants.
* Catch children and teens being good. Praise them for cooperating with you or their siblings, or for doing those little things that are so easy to take for granted.
* Use door openers that invite children to say more about an incident or their feelings. “I see,” “Oh,” “Tell me more,” “No kidding,” “Really,” “Hmmmm,” “Say that again, I want to be sure I understand you”, “So are you telling me that …”
* Praise builds a child’s confidence and reinforces communication. Unkind words tear children down and teach them that they just aren’t good enough.
* Children are never too old to be told they are loved. Saying “I love you” is important. Writing it in a note provides the child with a reminder that he/she can hold on to.
* Give your undivided attention when your children want to talk to you. Don’t read, watch TV, fall asleep or make yourself busy with other tasks.
Tuesday, March 23rd, 2010
Since one in four children will experience the divorce or separation of their parents, then we must help children through the many serious adjustments that they experience. New parental relationships, new homes and schools, and added financial pressures on parents are all significant factors, but critical to a child’s ability to cope is the opportunity to have regular access to both parents. Child experts tell us that children need predictable and consistent contact with both parents and no hostility between parents over the children. A tall order for parents in conflict, but if the focus is on the children’s best interest, then parents will help their children to learn to cope with the changes forced on them by divorce or separation.
Communication is frequently an issue, often resulting in wrong assumptions by one or both parents regarding their children. Frustrated parents may refuse their children access to the other parent or the non-custodial parent may be inconsistent in contact with their children. Unless parental rights are revoked, denying a parent contact with their children is illegal — even if they fail to pay child support. Domestic violence or drug issues sometimes are involved. As long as a child’s safety is not threatened, they still should have contact with a parent, even if third-party assistance is necessary.
Sometimes children become “pawns” in parental battles. As parents seek to win, their children frequently lose. By supporting their child’s contact with the other parent, adults validate the importance of that relationship, and minimize the focus on their own anger, hurts or frustrations. Parents can’t control each other, and benefit most from focusing on what they can control: their own attitudes and behaviors. When adults — even when they feel disrespected — resist the urge to degrade the other parent in front of children, they demonstrate integrity.
There may be frustration with the other parent’s lack of follow-through or availability, and the pain that this causes for children. While making disparaging comments should be avoided, adults should be careful not to make excuses for parental irresponsibility. Non-custodial parents must persist in maintaining contact with their children, even if the other parent makes it difficult or a child seems to push them away. It may feel discouraging now, but perseverance generally pays off with deeper parent-child relationships later. Parents should respect/honor the visitation schedule — both in showing up, and by being on time to pick up and drop off children. They should avoid making promises unless they can deliver on them.
Children need structure and love. Parents should make time with them as “normal” as possible, showing that they are more than a “Disneyland Dad” or “Magic Kingdom Mom,” who constantly entertains. Kids feel safer and grow up more confident with a healthy balance between clear expectations and unconditional support and love.
Tuesday, February 16th, 2010
What is the Difference between Divorce and Legal Separation?
A divorce ends a marital relationship. Specifically, you file a Petition of Dissolution of Marriage and the court ultimately enters a Decree of Dissolution of Marriage which terminates the legal marital relationship. There is no such thing as a common law divorce in New Mexico. In order to get a divorce all you need are “irreconcilable differences” in the marriage. This is what is typically referred to as “no fault divorce.” Marital misconduct is generally not a factor unless it has an impact on the children or the equitable division of the marital estate. New Mexico also allows for a “fault” divorce which can be based on adultery, abandonment, and cruel and inhuman treatment.
A legal separation is the same in all respects to a divorce, with some exceptions. First, the marriage is not terminated. Second, the parties are not free to remarry. Third, the petition is called a “Verified Petition for Legal Separation.” Fourth, the decree is called a “Final Decree of Legal Separation.” Many people often get a legal separation versus a divorce for religious reasons or because they want their spouse to retain the rights to some form of benefits which they would loose in a divorce.
Call us today for more information regarding the differences in divorce versus a legal separation.
Monday, January 25th, 2010
When facing a divorce, one of the most important decisions you initially make is choosing which lawyer to hire? Unfortunately, many people make the wrong choice and the consequences can be disastrous.
Mistake #1: Hiring a generalist versus a specialist.
Solution: When possible, hire a specialist. Ask the prospective divorce attorney whether they specialize in family law. If at least 70 percent to 80 percent of their practice is not focused on divorce and family law issues, you should maybe look elsewhere.
Mistake #2: Hiring a lawyer to represent you solely because they have a reputation of being the “meanest lawyer in town” or they are your “hired gun”.
Solution: Find a lawyer who is a problem solver, can be assertive when the situation requires it, but also compromising when it benefits your short term and long-term best interests. Always hire a lawyer who is fully aware of the many different consequences that the lawyer’s actions have on you, the opposing counsel, the opposing party, the judge and most importantly your family both within the legal system and outside of the legal system.