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Albuquerque Divorce Law Blog

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.

What is a postnuptial agreement?

A prenuptial agreement is a well-known method of setting forth resolution, before marriage, of issues that may arise if the marriage ends in a divorce. However, couples in New Mexico who are already married may enter into similar cost-effective settlements by creating a postnuptial agreement.

Like a prenup, a postnuptial agreement often determines the division of marital property if the marriage ends. It may also set forth the terms and length of alimony payments. A postnup can also address the division of property if a spouse dies. Such an agreement may describe the division of marital debts such as loans, mortgages, and credit card debt, too. The passing of assets during marriage or divorce may also be governed by the agreement.

How to go about preserving grandparents' rights

New Mexico provides some visitation rights to grandparents after divorce. Grandparents can increase their odds of receiving these rights by taking certain steps to build a loving and close relationship with their grandchildren and spending quality time with them.

To start, grandparents should call their grandchildren frequently. Helping the parents raise their children is also an important step to securing rights. This can include paying some expenses, babysitting, taking the children to appointments, and simply visiting. However, grandparents should not give unsolicited advice to a parent, especially when the other parent is nearby.

Can grandparents seek visitation rights in adoption cases?

No matter how much a grandparent loves his or her grandchild, certain life events can stymie the grandparent's ability to spend the time with their grandchild necessary to foster a healthy and supportive relationship. One of these life events is the adoption of the child. If a child is being adopted in New Mexico, can his or her grandparents seek visitation rights?

In general, if a child is adopted, then his or her biological parent's rights are terminated. However, a child's biological grandparent has the right under New Mexico Statutes Section 40-9-2 to move the court for visitation rights after the adoption or the pending adoption of his or her grandchild by another person in certain circumstances.

Military divorce and support

In addition to New Mexico family law, there are federal laws and requirements governing military divorce. One example is child and spousal support. Alimony and child support are separate obligations based upon different legal considerations. Alimony, also known as maintenance, is paid from the military spouse to their spouse for daily support. Courts may order a spouse to pay one or both types of support.

Alimony is based upon the financial needs of one spouse and the other spouse's ability to pay this support. In addition to male spouses, a woman now may be ordered to her financially-dependent husband. Spousal support is awarded less often because there are now more two income married couples where one spouse is economically dependent on the other spouse.

How does the military govern family support?

All branches of the armed forces have regulations that require its service members to give adequate support to family members following a divorce. However, enforcement is unclear because the military cannot enforce support payments unless a court issues an order.

A commander cannot order a service member to pay support. A commander can punish members who do not pay through nonjudicial punishment, reducing a person's rank, issuing a reprimand, denying promotions or even through a discharge. However, these sanctions may not be disclosed to family members or anyone else under the Privacy Act of 1974.

Obstacles to mediation

Couples undergoing divorce should consider mediation as a cost-effective and less contentious method to resolve differences. As opposed to litigation where a judge has the final say on the decree, couples play a role in reaching compromises and may reject terms.

However, all couples may not be candidates for mediation. Although spouses should keep an open mind about this procedure, there are obstacles to its success.

Helping you understand the benefits of divorce mediation

Divorce is never defined as a simple and easy process. In fact, many would describe it or presume that it is a challenging time filled with tears, fights and disappointment. While some spouses part ways because of the hostile situations involved in a union, this does not mean that these emotions have to carry over to the dissolution process.

Mediation has many benefits and advantages. It is unlike the traditional approach to divorce, because unlike litigation, spouses do not need to work through their divorce legal issues in the courtroom. At Atkinson & Kelsey, P.A., our experienced legal team understands that every relationship is unique; therefore, we help our clients approach the divorce process the best possible, meeting their needs and goals.

How does New Mexico child custody work?

New Mexico imposes child custody duties upon couples when they end their marriage or their relationships. These duties include meals, school attendance, medical care and recreational activities.

Courts rule on divorce petitions filed by spouses during divorce. Judges normally refer married parents to mediation to negotiate a plan for time sharing.