FAQ - Frequently Asked Divorce Questions

Divorce & Family Law FAQ

Links to Frequent Divorce Questions

• Is there any minimum waiting period in New Mexico?
• How is child support determined?
• What is the distinction between Divorce Law and Family Law?
• What do the courts consider in determining spousal support determination?
• I feel terrible, but I have to file for divorce or have to hire a lawyer because my spouse has. What should I do now?
• What can I expect after a divorce is filed in New Mexico?
• Do I need a lawyer to file for divorce in New Mexico?
• Why is Divorce so expensive?
• Does the Law Firm of Don Harris do "Uncontested Divorces"?
• Should I consider reconciliation?
• We separated, but I have no money to live on. Can anything be done?
• My spouse has all the money. Can I have my attorney get paid directly from my spouse?
• I heard New Mexico is a Community Property State, and not an Alimony State. Is that True?
• How Does the Court determine Custody?
• Won't the custody battle harm the Children? Shouldn't I just give up?

• Is there any minimum waiting period in New Mexico between the time someone files for divorce and when a divorce can be granted?
  
  There is no waiting period in New Mexico. However, the Court may set a hearing to clarify provisions of stipulated marital settlement agreement or parenting plan if something in the proposed arrangement seems unusual or unfair. The Court is most likely to set a hearing when minor children are involved, and the parties have submitted a parenting plan or child support proposal that is either unrealistic, inappropriate or needs clarification. The Court is more likely to set a hearing if the parties are not represented by counsel and there are substantial assets or minor children involved. If the parties are being represented by reputable family law attorneys, or if the uncontested divorce documents are prepared by a reputable family law attorney, the assigned judge will normally sign off on the divorce within one to two weeks of the completed documents being submitted to the judge's chambers by an attorney.

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• How is child support determined?
  
  The State of New Mexico provides guidelines in determining the amount and the parties responsible for child support New Mexico Child Support Guidelines. As a part of the guidelines there is a worksheet that can be used to calculate what the courts will use as guidelines New Mexico Child Support Worksheet. The judge is not required to follow the guidelines and is the final determining authority in setting child support responsibilities. At the Albuquerque Law Office of Don Harris, we assist our clients in understanding and completing this form and we also provide guidance on other aspects that may affect the child support responsibilities and amounts.

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• What is the distinction between Divorce Law and Family Law
  
  Divorce Law is a subset of the much broader field of Family Law. Whereas Divorce Law addresses the specifics of divorce, Family Law also covers areas of pre- and postnuptial agreements, child custody and visitation arrangements, adoptions, guardianships, and other such matters.

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• What do the courts consider in determining spousal support determination?
  
  Some of the key factors taken into consideration by the Court when deciding whether to award spousal support and the amount include:
  • The earning capacity, obligations, needs and financial resources of the parties including but not limited to earned and unearned income, pensions, and retirement plans;
  • The education and training of the parties and the ability and opportunity of the parties to obtain such education and training;
  • The standard of living established during the marriage;
  • The duration of the marriage;
  • The age and mental and physical condition of each of the parties;
  • The property interest of the parties; and
  • The provisions made with regard to the marital property;

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• I feel terrible, but I have to file for divorce or have to hire a lawyer because my spouse has. What should I do now?
  
  You need to do two things. First, contact a good counselor or at least a support group. Second, contact an experienced family lawyer. At the family law firm of Don Harris, we help people through a very difficult transition, both emotionally and financially. If you are not familiar with good councilors in the Albuquerque area, we can recommend a number of them. Divorce is never easy; in fact it is one of the most stressful events you are likely to go through in your life. At the Albuquerque divorce and family law firm of Don Harris, Attorney at Law, we understand how difficult this season of your life is, which is why we ask our clients to seek counseling in addition to our family law and divorce services. It is not a sign of weakness, but a sign of wisdom.

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• What can I expect after a divorce is filed in New Mexico?
  
  The law in New Mexico presumes that the spouses' income and fixed expenses will be divided equally, so that each party has the same amount of money to provide for their daily needs while the divorce is pending. This is called a temporary "interim division" order. This is usually accomplished by the filing of a motion, and the matter will be heard shortly after the motion is filed. After filing of a divorce in New Mexico, and the interim division of income order, the case will progress based on the complexity of the case and the nature and seriousness of the disputes involved. At Don Harris, Attorney at Law, PC, we will assist you through every stage of the divorce case, and give you a fair and reasonable analysis so that you know what to expect and can have confidence about your future..

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• Do I need a lawyer to file for divorce in New Mexico?
  
  If the marriage is very short term, if there are few assets that were acquired during the marriage, and if there are no children, then you may consider acquiring a do it yourself, or "pro se" divorce kit from the family court clerk. However, if there are children (which can mean potential disputes regarding child custody or child support), if the marriage is longer than five years (which could bring alimony into consideration), or if there are significant assets acquired during the marriage, such as a home or pension plans, then you should seriously consider consulting with an experienced family law attorney. During our initial consultation at Don Harris' Albuquerque divorce and family law firm we can advise you which path you should probably take.

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• Why is Divorce so expensive?
  
  Costs in divorce cases are driven by two factors: (a) the complexity of the case, and (b) the contentiousness of the case. If there are complex problems relating to assets, alimony or custody or support of minor children, then having an experienced family law attorney is a necessary investment. The costs in divorce proceedings can also be driven by the parties' emotional wounds of a broken marriage that sometimes cause one or both of the divorcing parties to refuse to compromise or to have unrealistic expectations. At the Albuquerque divorce law firm of Don Harris, we work hard to mediate divorce cases when possible and try to work with opposing lawyers to find ways of keeping costs down.

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• Does the Law Firm of Don Harris do "Uncontested Divorces"?
  
  An uncontested divorce is often in everyone's best interest. At the Albuquerque divorce law firm of Don Harris, Attorney at Law, we can help you with your uncontested divorce. Each party must sign a "conflict of interest" waiver, and the divorcing couple should have reached general agreement on all major issues. At the divorce law firm of Don Harris, we can assist with resolving minor issues by advising both parties on the law, the risks and making suggestions. A typical uncontested divorce will cost $1500, including filing fee, attorney fees and gross receipts tax.

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• Should I consider reconciliation?
  
  Generally speaking, yes. A healthy, low conflict marriage has many benefits. Married people normally enjoy greater wealth and better health than unmarried people. Everything else being equal, intact marriages generally promote better outcomes for children. Sometimes we can identify issues that can be resolved through counseling. However, by the time someone sees a divorce attorney, most reasonable efforts at reconciliation have often been exhausted. Although a low-conflict marriage is generally the best result, a high-conflict marriage is often worse than a low conflict divorce, and frequently a low-conflict marriage is not possible. There are some situations where reconciliation is not advised, such as when one of the spouses has untreated or untreatable emotional or psychological issues that result in domestic violence, drug or alcohol abuse, or other pathological or extremely manipulative behavior that will prevent any healthy relationship. Because we care about the whole person and the best outcome more than we care about earning a fee, we normally inquire about reconciliation and encourage reconciliation if appropriate. On the other hand, our Albuquerque divorce firm fully understands that most people do not hire an experienced divorce lawyer for that purpose, and we will respect your wishes first and foremost.

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• We separated, but I have no money to live on. Can anything be done?
  
  In New Mexico, during a divorce the Courts normally require that the community income, which is all income earned by both parties, be divided and that the fixed expenses be divided. This is the called interim division. This is a complex analysis, and the assistance of an experienced family law attorney is recommended. In broad terms, the fixed expenses of the parties and calculated, and the combined income is calculated, and then the Court divides the income of the parties to attempt to insure that each party has approximately the same amount of "spendable income" while the case is pending. The party who has more "spendable income" than the other is required to make a transfer payment to equal the spendable income for each. Don Harris' Albuquerque divorce law firm has forms and programs that will assist you in quickly determining the proper allocation of income and expenses.

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• My spouse has all the money. Can I have my attorney get paid directly from my spouse?
  
  Normally, no. If cash is in short supply, then it is advisable to borrow money from friends or family or to obtain another loan or credit card cash advance to pay your attorney's retainer. Debts incurred to pay your attorney's fees, and your spouse's attorney's fees, will often be paid by marital assets at the end of the divorce proceeding. Even when attorney fees are awarded in a divorce proceeding, the fee award belongs to and is awarded to the client, not the divorce attorney. However, there are situations where one spouse makes little or nothing, and the other spouse is a high earner who is hoarding assets and income. Where it would be appropriate, Don Harris' divorce lawyers will file a motion for the advancement of attorney fees.

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• I heard New Mexico is a Community Property State, and not an Alimony State. Is that True?
  
  Although New Mexico is a community property state, alimony is nevertheless available and frequently awarded. At one point in time, alimony was more difficult to obtain in New Mexico. The Alimony statutes were amended in 1993 by the New Mexico legislature to make it much easier to obtain alimony awards and for the Court to retain jurisdiction indefinitely. Alimony, or "spousal support," can be very contentious and difficult. The New Mexico Revised Alimony Guidelines help to take some of the unpredictability out of spousal support disputes, but alimony claims remain difficult, factually, legally and emotionally for both parties. An experienced divorce and family lawyer is necessary to protect your interests in New Mexico courts, whether your spouse has an alimony claim against you or whether you will have an alimony claim against your spouse.

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• How Does the Court determine Custody?
  
  Child Custody, to time share, determinations can be made through a number of mechanisms, after a divorce or legal separation. An experienced divorce or family lawyer can be vital to your chances of achieving the best results for your family. At the Albuquerque divorce law firm of Don Harris, we help you choose the best option and help you navigate through the appropriate process.
  
  The parties can obtain mediation, either through a private party or the Court Clinic, which provides services on a sliding scale. The Bernalillo County District Court Clinic may also provide what is called "Priority Consultation," which is a brief assessment of a certain issue and a recommendation, or an "Advisory Consultation," which is a more in depth analysis of the custody situation, followed by a recommendation. The parties have the right to object to the clinicians recommendation after either an Advisory Consultation or a Priority Consultation. The parties may choose to hire a private family therapist to give an independent recommendation. The Court would appoint the independent evaluator as an arm of the Court, although the parties may object to the child custody evaluation of the independent party as well. Finally, if none of the above alternatives is suitable, or results in a solution that the parties will accept, then sometimes both parties can hire their own expert witnesses, and the custody issue can go to an actual trial. It should be emphasized, however, that an actual "trial" on child custody is a fairly rare event. More often is that the Court may have to decide one or two issues that remain contested after the parties and their children have gone through an evaluation, either through a private party or the Court Clinic. Our firm will represent you and your child's interests if it comes to trial.

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• Won't the custody battle harm the Children? Shouldn't I just give up?
  
  No. At the Albuquerque divorce law firm of Don Harris, we advise our clients that it is generally a good investment to get the assistance of other professionals to help the parents and children to understand the difficulties, resolve disputes effectively, and make a successful transition to a one-parent household. Like King Solomon, at the divorce law firm of Don Harris, we sometimes find that the more loving parent is the one who initially seems willing to let the children go rather than tear them apart. In a contested custody situation, however, the most loving choice is to nearly always to insure that the children are in the best possible environment. The professional therapists either privately hired or through the Court Clinic, know how to talk to, understand, and counsel children. The process is often as helpful, if not more helpful, than it is harmful or disruptive. The really disruptive process for children is the discord of an uncooperative divorce. If you believe that you can provide the most appropriate, nurturing, and stable environment for your children, and your spouse does not agree, there are mechanisms that can assist you in achieving the custody and visitation that you deserve, and, most importantly, that is in the best interests of your precious children.

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Don Harris Law, P.A., is an Albuquerque-based, New Mexico, divorce law firm which provides divorce and family law legal services and advice throughout the state. The majority of its clients reside in the Albuquerque, New Mexico, area, i.e., Albuquerque, Bernalillo, Rio Rancho, Las Lunas and Belen. But the firm can also represent clients statewide in Hobbs, Las Cruces, Clovis, Farmington and other New Mexico cities. Don Harris represents clients who reside in New Mexico and also non-residents when the legal proceedings are under New Mexico legal jurisdiction. Divorce and Family Law, as practiced by Don Harris Law, P.A., addresses all of a client's concerns; legal, financial, and emotional. Don attempts to settle divorce cases through mediation. If mediation is unsuccessful then the trial skills of Don and his firm the firm are brought into play. Don Harris is a well-known and respected Albuquerque, New Mexico, lawyer. Don Harris not only provides the legal divorce and family law advice and guidance expected of an experienced lawyer, he also works with other professionals such as financial advisors, CPAs and mental health counselors to provide the firm's clients with many of the services needed to get through their personal challenging times.

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