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Albuquerque Divorce Law Blog

When is sole custody more appropriate than joint custody?

Matters regarding the custody of children are handled with the utmost care by the courts of New Mexico. As with many other American jurisdictions, New Mexico courts seek to preserve the best interests of the children whose legal matters arrive in their chambers. As such, when two parents go through a divorce and the legal and physical custody of their children must be determined, a court will evaluate a host of factors to arrive at a custody arrangement that meets the children's needs.

While in some situations it may be advisable for the parents to share joint custody of their kids, some cases may require courts to award sole physical and legal custody of children to one parent. Consider, for example, the unfortunate situation of a parent who struggles with addiction or alcohol. If they are unable to care for themselves, then it is not reasonable for a court to place children in their potentially dangerous care.

Factors that may be relevant in an alimony determination

When two New Mexico residents choose to divorce they must manage a host of legal decisions that will shape their post-marital lives. For example, if the couple shares children they will have to work out a child custody plan or submit to the decision of their court to decide how the legal and physical custody of their kids should be settled. They may sell their marital home, split their financial assets and forego interests they had in each other's property simply to get to the end of their divorce. However, if one of the parties fears that their financial situation will be impacted by the loss of their spouse's support they may seek alimony from their divorce court.

An award of alimony requires the paying spouse to provide the recipient spouse with money on a schedule established by their court. Alimony can be paid in a lump sum or may be paid out over time. It can be used to prepare a person to reenter the job market or to obtain education needed to secure employment.

Military spouses need assistance

Spouses undergoing a military divorce must deal with the complexity of multiple laws and unique circumstances. In addition to New Mexico's family law, families must address federal laws, such as the Service Member's Civil Relief Act and the Uniformed Services Former Protection Act.

Military service provides restrictions on court proceedings when a member of the military is on active duty or assigned to a different jurisdiction. Federal laws have different procedures and methods on property division on specific assets, such as retirement, TRICARE health care, commissary and other benefits.

Divorce poses special hurdles for same-sex couples

Achieving New Mexico equal rights to marriage sometimes poses special problems for same-sex couples undergoing divorce since they were afforded equal marital rights. Divorce mediation may be the process to overcome these obstacles.

In 2015, the Supreme Court ruled that every state must recognize same-sex marriages. Tax benefits, access to employee benefits, medical decisions and all legal rights in heterosexual marriages now apply to same-sex unions.

Alimony deduction under review

The tax overhaul bill being reviewed in the nation's capital may eliminate a popular tax deduction. Section 1039 of the House bill, if approved, would take away the alimony deduction. While it may not generate substantial revenue, the proposed bill may have a large impact on taxpayers who pay spousal support and even its recipients.

Current federal tax law allows payors to deduct alimony payments from their taxable income. Recipients of these payments must treat it as taxable income. However, families can save on their taxes because payors are usually in a higher tax bracket and shift taxes to recipients who are usually in a lower bracket.

Collaborative divorce is another option

Couples in New Mexico have several options to end their marriage through divorce. They can go to court, engage in divorce mediation or take part in a collaborative divorce. In a collaborative divorce, spouses enter a contract where they agree to resolve divorce issues through negotiation instead of litigation.

Collaborative divorce is an outgrowth of mediation. In mediation, however, a mediator may have problems with recommending a fair settlement because the spouses are not equally matched as negotiators or if a party is upset or refuses to negotiate.

Divorce mediation and finances

The end of a marriage brings numerous legal and emotional disputes. It is further complicated by the role that a divorce decree can have on a spouse's finances. Divorce mediation may be an effective way to resolve divorce issues and assure some financial stability.

It can take time to identify and unravel property and assets that were obtained during marriage or even owned by the spouses before their wedding. Mediation may be a less-costly and productive method to identify these assets and allow the couple to agree on ownership and division instead of having to live with the findings of a family court judge.

What restrictions apply to military divorce?

Couples undergoing a military divorce must contend with federal laws in addition to New Mexico statutes. Service members receive federal legal protections that are not afforded to civilians.

A legal proceeding may be delayed, at the court's discretion, for the time a servicemember is on active duty and for 60 days afterward under the Servicemembers Civil Relief Act. The law also prevents active duty personnel from being held in default or penalized for not responding to pleadings and other matters in a divorce proceeding.

When litigation is a serious option

Approximately 90 percent of divorces are settled around the word without going to court. In New Mexico, divorce mediation has become an increasingly important part of settling cases at lower cost and emotional stress. However, there may be limited times when litigation should be considered as a serious option.

First, going to court is available if mediation fails to reach an agreement acceptable to both spouses. Important divorce issues such as child custody and support may remain unresolved and need judicial intervention.

Alimony or child support

Seeking a divorce decree that ensures financial stability involves more than obtaining dollar amounts or property. There are tax consequences associated with allocating alimony or child support for New Mexico couples.

Alimony, or spousal support is ordinary income that must be reported on the recipient's tax return is becomes an ongoing financial obligation for the recipient. It is also deductible from gross income on the payer's taxes.