The men and women who choose to commit their lives to service in the United States military often do so at the expense of their relationships. Military careers can be transient, carrying personnel and their spouses and kids on journeys across the country and across the planet. A military family currently stationed in New Mexico may find itself quickly uprooted when relocation or a new assignment is sent down for the service member.
In the event that a service member or their spouse decides that marriage is no longer something that is best for them and their family, they may find that their frequent moves have left them with no clear place of constant residence. Courts generally require some period of residence in a jurisdiction before a divorce may be filed, and in some cases service members and their spouses may not meet those burdens due to their assignments.
In order to facilitate divorce proceedings for service members, courts often allow exceptions for them to their residence rules. Generally, a service member or their spouse may file for divorce in the jurisdiction where the spouse lives if it is not the same place as the service member, the jurisdiction where the service member is stationed, or the state where the service member is a legal resident.
Once a military divorce is filed the proceedings will accord to the laws of the location where the divorce was filed. For this reason and many others, individuals in military marriages may wish to discuss their divorce plans with attorneys familiar with military family law issues so that they may make responsible choices regarding where and when they choose to file for divorce.
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.
Additionally, a court may award one parent physical and legal custody of their children if the other parent has committed domestic or child abuse in the past. Whenever a child's well-being is at stake it is on the court to make a responsible choice regarding where the child's needs will be met and their safety will be prioritized.
Often when a parent is not awarded custody of their children they may be able secure visitation time with the kids. However, if the parent presents a threat to their children then visitation may be denied.
Attorneys who work in the family law field are often useful advocates for parents who are caught in difficult child custody cases. Consultation with a family law attorney may be a helpful step for readers of this Albuquerque-based legal blog.
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.
Not all divorces involve awards of alimony and not every divorce that includes a petition for alimony will end up approving such an award. Certain factors will be considered by courts to decide if awards of alimony are appropriate.
One of the main factors that should be evaluated is the financial positions of the parties. If one party has not worked in years and the other earns a high income it can be reasonable for the working party to continue to support the jobless party for at least some time. If the nonworking party is elderly and no able to reenter the workforce then they may be more likely to receive alimony.
A couple that has been married for a long time is more likely to see an alimony award in their divorce than a couple with a short marriage, and a party to a divorce who suffers from a mental or physical condition that would make supporting themselves challenging may be found to need an alimony award.
The factors discussed herein are not a comprehensive list of elements that courts will consider for alimony determinations. Readers are asked to speak with their divorce attorneys regarding if they should pursue alimony as their marriages end.
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.
At times, military regulations govern the payment of child support and alimony. Laws also govern child custody and visitation that reflect family separation and distant assignments. In addition, military officials can also play a role with divorce legal issues.
Our firm has 50 years of experience representing spouses in family law matters in the Albuquerque area. We are familiar with the special needs of military families, the military benefits that must be addressed in divorce and the challenges with handling a case where the family is separated. Our lawyers can help obtain temporary support until the divorce is final.
We have the skill to represent clients who are service members or civilians in military divorces. Our lawyers know how to represent their interests under New Mexico's divorce laws and military laws. We understand how to litigate a case in accordance with these laws and to deal with military commanders.
We are experienced with helping families in all five branches of the military located all over the world and in facilities in New Mexico such as Cannon and Kirtland Air Force Bases and the Holloman Air Force Base and Alamogordo Army Air Field. The special stress of military life, such as the dangers of service and relocation, is always considered in our service to our clients. Contact Atkinson & Kelsey and learn about the military divorce process.
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.
Decisions are not always consistent. Some courts will consider the time that the couple cohabitated and add that to the time they were legally married. Other proof, such as a joint bank account, is not always persuasive for judges.
This has consequences over many issues, such as property division and when property was owned by a spouse before or after marriage. Because alimony is often based on the length of the marriage, selecting a period may be disputed over whether spousal support will be paid to a lower-earning spouse.
This also plays a role in child custody issues. When a child was born to or adopted by one of the spouses, that spouse may have full legal parental rights even if both spouses raised the child.
Mediation may help expedite resolution of these thorny issues if both spouses are inclined to cooperate on negotiating divorce issues without going to court. The couple is they can play a role and achieve self-determination on resolving matters. This is better than leaving the decision to a judge which may be unacceptable but mandatory.
Mediators will use New Mexico law as guidance with helping to fashion an agreement. However, the process encourages creativity to help assure that both spouses are treated fairly and that they may reach an agreement that meets their needs.
An attorney can help assure that spouses can assert their rights while seeking a reasonable and equitable divorce decree. They can also provide guidance to parties undergoing mediation.
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.
This helps improve cash flow for divorcing couples. Allocation of these savings may be determined by the court or negotiated by the parties.
If this bill becomes law, there may be a significant impact on divorce settlements. Alimony is considered one of the most significant deductions and an inducement for agreeing to spousal support payments. Absent this deduction, alimony will become more expensive. Payors will be more reluctant to make these payments.
Even though support recipients will no longer pay taxes on alimony, their incomes will be reduced. Divorce negotiations and courts will consider the payor's higher tax bill as a factor.
It is anticipated that changes to the deduction will lead to major activity in New Mexico and other states to change alimony laws and guidelines. Spousal support payments may be revised downward to offset the loss of the tax deduction.
However, this proposed change is anticipated to raise relatively little revenue. Elimination of this deduction is forecast to raise approximately $8 billion over 10 years. The tax increase on payors will be balanced by the lower taxes on recipients because alimony will not be taxed as income.
Couples undergoing divorce should seek legal assistance to consider the impact of a divorce decree on their taxes and other finances. An experienced family law attorney can help assure that negotiations or litigation lead to a fair and reasonable decree.
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.
Separate attorneys represent each spouse in a collaborative divorce. The spouses agree that the attorneys will be removed, unable to represent them and disqualified as witnesses if the process is unsuccessful.
These rules lead to a productive and innovative process where the spouses and their attorneys look for workable solutions for both parties. Privacy remains intact. Financial affidavits and other information can stay confidential and allegations may not be publicly aired as in a court proceeding. Information is analyzed in an unrushed and cooperative process.
Spouses must disclose assets, income and other similar information. A collaborative agreement may be dissolved if a spouse withholds this information. This transparency and cooperation encourages settlements that require requests for post-judgment court enforcement.
Accountants, actuaries and therapist may be invited to take part in this process. Their work does not have to be duplicated by each spouse when they take part in litigation. These experts can help expedite decisions on parenting plans, valuation of assets, tax matters and complicated property division.
This process may also be more expeditious. During litigated divorce, settlements often occur on the eve of the case to avoid the uncertainty of the judge's rulings. However, the spouse probably spent time and money while engaged in an acrimonious dispute before reaching this last-minute agreement.
Lawyers engage in this process must have special training because they take different approaches than litigated divorce. They can help draft a settlement that encourages problem solving and which is fair and reasonable for the entire family.
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.
The equitable and reasonable division of assets is an important mediation goal. It provides an opportunity for spouses to enter a settlement that they both consider fair. One spouse should not gain an unfair advantage in this process.
Even complex mediations may also cost significantly less than going to court or participating in a collaborative divorce. Mediation can also address other complicated issues such as spousal support. This can provide more funds to each spouse for starting a new life after the divorce.
Even if mediation resolves property division, a spouse should also take other financial steps. First, a post-divorce budget should help lower expenses and deal with ongoing costs such as child and spousal support and future expenses such as retirement.
Joint accounts from the marriage need to be closed. These include checking and savings accounts, credit cards and mutual funds. Mediation can help develop a process and schedule for closing these accounts.
Updating beneficiaries on accounts helps assure that assets are not unintentionally transferred to a former spouse or other former family members instead of a current spouse or children. Beneficiaries on life insurance policies, 401(k) or IRA plans and other valuable financial plans should be reviewed and updated.
Credit reports are also significant. These should be reviewed to keep current on credit scores, any negative changes and whether someone else is opening credit accounts in the spouse's name.
An attorney can help a spouse undergo mediation and assure that they pursue a fair and reasonable resolution that complies with New Mexico law. A lawyer can help with these financial matters and other divorce legal issues.
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.
Service personnel, however, should not ignore legal documents they receive and should notify the court of their assignment. An attorney should also file a motion asking the court for a delay. Even if a stay is granted, there will be a time when the case proceeds through court.
If the end of the marriage is imminent, a member of the military may want to expedite the divorce. For example, the value of the military retirement that their spouse will claim increases with the passage of time.
The Uniformed Services Former Protection Act also contains conditions where a state court may assume jurisdiction over military retirement benefits. A court cannot treat disposable retirement pay as community property unless the court has authority over the servicemember because of their residence or domicile or where the servicemember agrees to jurisdiction. This jurisdiction cannot be based upon the member's military assignment unless they otherwise reside in that state.
Accordingly, a court where the servicemember is stationed can probably divide that member's military benefits if that spouse started the divorce action. Where the other spouse began the action, the USFPA probably protects the pension from property division in that state.
The USFPA also contains a 10-year rule which restricts the Defense Financing Accounting Service from paying benefits to the former spouse. This does not limit state courts from awarding a portion of military pay to a former spouse regardless of the marriage's length.
When the DFAS does not directly make payment to the former spouse, service personnel must pay the former spouse directly. This is usually limited to retirement benefits earned during marriage.
An attorney can help spouses comply with the laws governing these divorces. They can help assure that they have an opportunity to pursue a fair and reasonable decree.
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.
There are also times when there is a significant power imbalance between the parties. For example, one spouse may control all the finances which places the other party at a substantial disadvantage during negotiations.
Unrealistic expectations also restrict settlement. In mediation, parties need to cooperate and rely on logic, problem solving and empathy to resolve disputes. When one of the parties is emotionally-committed to an issue or wishes to punish their ex, settlement may be unobtainable. Mediation may also be challenging where only one spouse wishes to end their marriage.
Concerns over forensic issues such as the other party's honesty, transparency or willingness to turn over documents and information undermines trust between the parties and the chances for a successful mediation. Courts, however, can compel the production and discovery of evidence.
Other factors are even more serious. Where one of the spouses is engaged in criminal activity, there may be serious consequences for both parties. They each should have legal representation and take protections for their family.
When a spouse's or family member's mental condition is a factor, it may be necessary to go to court. A judge has the authority to compel production of mental health records.
Finally, domestic is a serious disqualification. It may never be a subject of negotiation. Furthermore, mediation is physically impossible where one spouse may harm or intimidate their ex.
A spouse should seek prompt legal representation to explore the benefits of mediation and options they may pursue. An attorney can help assure that a spouse follows mediation procedures and fully explores their rights and reasonable options.