Divorce and Family Law FAQ

Frequent Divorce Questions

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• Is there any minimum waiting period in New Mexico?

  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.

• 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.

• 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.

• 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;

  More information can be found in our Spousal Support Guidelines

• 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 counselors 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• What Happens When One Party Wants to Relocate to Another State With a Child?

  Relocation of a minor child after a divorce or separation is never an easy task. The Courts have to make sure that the decision to re locate a child will not be one that affects him or her negatively. At the Albuquerque divorce and family law firm of Don Harris, we have the experience that you need if facing a situation where you want to relocate to a different state with your child, or if the other parent desires to relocate and you do not agree.
  
  Children rely on their family for reassurance that they are safe, are going to be taken care of and, no matter what, their parents will be there for them. After a divorce or separation, the world that the child had been living in no longer exists. They now have two different homes and maybe even step-parents as well. Having to re-adjust to all these new elements can be very hard and even scary to children. During this difficult process, an experienced New Mexico family lawyer can help you understand, predict and manage the outcome of a relocation problem.
  
  In most cases, families that have split up tend to stay in the same state and the child or children do not have to re-adjust to too much. Ideally, courts like it the best when parents stay in the same neighborhood. They are still able to go to the same schools, play with the same friends and still visit the same family members they are used to.
  
  Unfortunately, being in a modern world where travel is not only for pleasure but also for work, many people find themselves uprooting and re-locating to another state for work related reasons. Many parents may have to or merely desire to leave the Albuquerque area or other parts of New Mexico.
  
  Courts throughout the country have struggled on what presumption to apply in a relocation issue. Some states presume that the parent with primary physical custody should be able to relocate with the child, thus putting the parent who is left behind, if not the one with primary custody, to justify why the child should stay. Some state courts presume that a relocation is generally harmful to the child, and presume that the child should stay, thus forcing the relocating parent to justify why the child should go.
  
  The courts in New Mexico take what can be called an intermediate approach. The court will not reward or punish either party for wanting to leave or to stay. The New Mexico courts essentially assume that the move will happen and that the one party moving constitutes a material change in circumstances. The court then looks at what is in the best interests of the child in light of the situation where the parents will be living in different states. The divorce courts in New Mexico look at several factors, including the attachment of the child to either or both parents, the reason for the move, and other factors including the age and desires of the child.
  
  In many cases a relocation, of either a child or a parent, will involve a split of summer vacations and school breaks between parents and holidays as well. Many families have arrangements like this that work very well.
  
  The family courts in New Mexico take relocation motions very seriously. When either party moves from the area, it forever changes the relationship with one of the parents. The situation can be effectively managed, but it is not easy on the children. Family law attorneys in New Mexico find these issues to be very challenging. The Albuquerque Law Firm of Don Harris has helped many people work through these issues, and has obtained good results for his clients.
  
  In most cases, parents are encouraged to take counseling classes to help them act as a unified parenting team, making decisions together for the benefit of the child rather than themselves. This method works on two different levels; one, it shows the child the parents are working together, like any parenting unit, and two, it gives a medium for the parents to negotiate in a healthy way.
  
  If the parents cannot agree on a relocation, then it presents a painful win/lose scenario where one parent will "win" by keeping the child where he or she will live (or taking the child to the new location), and the other parent will lose by having to live potentially far away from the child. These cases are difficult because, unlike a typical time-share case where the Court can reach a middle ground position by adding a little time or removing some, a child cannot be split and live in two states.
  
  If the parties cannot agree, then the parties may need to avail themselves to the options under the New Mexico family legal statutes. The parties may need to hire an expert, clinical psychologist to perform a child custody evaluation as an independent expert approved by the Court. Alternatively, the parties may need to have a guardian ad litem appointed to advise the Court about what is in the best interests of the child. Finally, if the matter cannot be resolved after those options are exhausted, the parties may need to hire their own expert witnesses and proceed to trial.
  
  Many times we lose sight of what our goal is when emotions are high. Having a mediator helps to pin point what your goals are and how they can be reached in a joint effort. The main goal here should be: What will best for my children? The judges in the Albuquerque District Court, and in all of Courts in the State of New Mexico are most concerned about what is in the best interests of the child in such a circumstance.
  
  Children are more perceptive than we give them credit for. They listen to everything we say and watch what we do to see how they should act. During a divorce or a separation they are in a way, stuck in the middle. Both sides want what is best for the child, but it is sometimes hard to get there.
  
  When the child sees that the parents are still acting as a unit, although they are apart, either by miles or even states, it gives them a feeling of re-assurance that there is still a "Family". Children also adapt very easily to new environments as long as they have support through the change.

• What about Parenting Agreements?

  Parenting Agreements

  Copyright 2010 Nolo

  
  

  Practical steps to help you create a workable parenting plan with your child's other parent.

  If you are divorcing and you have kids, the most important task ahead of you is to make an agreement with your spouse about custody and visitation. No matter how angry you may be or how difficult your communication with your spouse is, put your children first and do everything you can to make decisions together with your spouse, rather than letting a judge or court evaluator make them for you. This means keeping an open mind and getting whatever professional help you might need -- from a therapist, a custody evaluator, or a family mediator.

  What Is a Parenting Agreement?

  A written parenting agreement or parenting plan is helpful in setting the stage for a successful post-divorce relationship. Just the process of creating an agreement allows you and your future ex-spouse to discuss most or all of the issues that will come up during your children's lives. In addition, if, after you create and sign an agreement, the other parent continuously breaks the agreement, you will have proof that he or she originally agreed to the agreement in writing.

  Factors you should consider in writing your agreement include:

  • custody and living arrangements
  • visitation
  • financial issues
  • education
  • medical care
  • religious training
  • holidays

  Gather Documents

  Before you try to negotiate with the other parent or seek the help of any professional in developing a parenting agreement, it makes sense to collect and review all relevant documents. If you're in the midst of a divorce, or if you've already been involved in custody proceedings, these might include:

  • court documents you have filed or received, such as a "summons," "petition," "complaint," "response," "answer," "declaration," or "affidavit"
  • correspondence from an attorney, counselor, mediator, or court official regarding your separation, divorce, paternity, child support, custody, or visitation
  • court orders regarding a legal separation, divorce, paternity declaration, or award of custody
  • previously mediated, arbitrated or negotiated agreements between you and the other parent
  • documents dissolving your religious marriage, or describing your marital status and your options according to your religious denomination, and
  • reports, letters, or evaluations from school officials, counselors, therapists, or others who have an insight into your children.

  You won't necessarily need all of these documents to develop a parenting plan. Nevertheless, having them can help expedite matters, especially if you are going through a legal separation or divorce. For example, if you or the other parent have already initiated a court proceeding, you may have a deadline for submitting your parenting agreement.

  Carefully read the documents you gather. If you need help in finding or understanding any of them, an attorney, court clerk, paralegal, marriage counselor, or mediator might be useful. Some of these folks might also be able to help you work with your spouse.

• What Alimony Records You Should Keep After Divorce?

  Alimony: Records You Should Keep After Divorce

  Copyright 2010 Nolo

  
  

  If alimony is part of your divorce, learn what records you should keep.

  Alimony, also called spousal support, means a payment by one spouse to another following a divorce. Courts don't always grant alimony, and the trend is away from alimony orders, but where the marriage was long and one spouse earns a lot more than another, or one spouse left the workforce in order to raise children or manage the household, alimony is fairly common. (For basic information about alimony, read Nolo's article Alimony: What You Need to Know Before Divorce.)

  Here are the records each party to the divorce should keep:

  Alimony Payer

  The person paying alimony should keep:

  • a list showing each payment (date, check number, and address to which the check was sent)
  • the originals of checks used for payments (keep in a safe place, such as a safe deposit box) -- be sure to note on each check the month for which the support is being paid, and
  • if you pay in cash, receipts for each payment, signed by the recipient.

  Be sure to keep these records for at least three years from the date you file the tax return deducting the payments. Some lawyers and tax advisers say you should never throw away records like these.

  Alimony Recipient

  The spouse receiving support should make a list that shows each payment received. Include the following information:

  • date payment was received
  • amount received
  • check number or other identifying information (for example, the number of the money order)
  • account number on which any check is written
  • name of bank on which check is drawn or money order issued
  • a photocopy of the check or money order, and
  • a copy of any signed receipt you give for cash payments.

• What are the Divorce Mediation Myths?

  Divorce Mediation Myths

  Copyright 2010 Nolo

  
  by Katherine E. Stoner, Attorney-Mediator
  

  Debunking divorce mediation myths: Facts about the mediation process.

  Myth: Mediation allows one spouse to dominate another.

  Fact: A good mediator pays close attention to the power balance between the spouses and uses specific techniques to address any imbalance. If one spouse persists in dominating behavior, the mediator will call a stop to the mediation rather than allowing it to continue. One caveat: Even the best mediator can be unaware of a power imbalance if it only goes on outside of the mediation sessions and the spouses don't let the mediator know about it.

  Myth: Women are at a disadvantage in mediation.

  Fact: Women are no more at a disadvantage in mediation than in divorce court. In fact, women can often obtain a better result in mediation than they can in court, because the mediation process allows separating spouses to negotiate an agreement that considers nonlegal factors. Also, except for court-ordered (mandatory) mediation, a woman is free to stop the mediation or refuse to sign an agreement that seems unfair to her.

  Myth: Mediation is more of a hassle than hiring a lawyer to handle the divorce.

  Fact: Whether divorcing spouses mediate or hire a lawyer to handle the divorce, they have to do a certain amount of gathering information and making decisions. Mediation offers a streamlined approach to the information-gathering and decision-making processes. In contrast, using the courts is cumbersome and expensive.

  Myth: Mediation is for wimps.

  Fact: In mediation, the spouses stand up for themselves and what they want. They don't have lawyers speaking for them and telling them what to do. As a result, people who mediate often come out of their divorce with enhanced communication skills and self-confidence, as well as agreements they can really live with.

  Myth: Mediation makes the divorce take longer.

  Fact: Mediation almost always takes less time than litigating a divorce. Unless the spouses have worked everything out ahead of time, hiring lawyers to handle the divorce will almost always take as long or longer than mediating, even if the lawyers are able to settle out of court.

  Myth: There's no place for lawyers in mediation.

  Fact: Lawyers who understand and support mediation can help mediating spouses in several ways: by informing them of their legal rights and options, by coaching them through the negotiations, by coming up with creative settlement ideas, and by preparing the necessary divorce paperwork once an agreement is signed. Most consulting lawyers charge a reasonable hourly fee and don't require a large retainer (advance deposit). A spouse pays for only as much consulting time as is needed.

  Myth: All divorce lawyers understand and support mediation.

  Fact: Divorce mediation is still a relatively new way of approaching divorce. Many adversarial lawyers have little or no experience with the non adversarial approach used in mediation. Some even disapprove of mediation, arguing that divorcing spouses should not negotiate on their own but only through lawyers. These attitudes are slowly changing, as divorce lawyers become more aware of mediation and its benefits for their clients. Meanwhile, spouses wishing to mediate their divorce need to find consulting lawyers who are "mediation-friendly."

  Myth: In mediation, the mediator decides what's fair.

  Fact: Unlike a judge or an arbitrator, a mediator has no power to make decisions for the divorcing spouses. The mediator's job is to help the spouses negotiate an agreement that each of them considers fair enough to accept.

  Myth: Mediation is always the best option for every divorcing couple.

  Fact: Mediation works for most divorcing couples. As long as both spouses are able to speak up for what's important to them and can behave themselves appropriately in mediation, the process can work for them. On the other hand, mediation may not offer enough protection and structure for some couples. For example, a couple with domestic violence or substance abuse issues may need to have lawyers speak for them instead of trying to negotiate directly. In addition, some spouses may prefer to assume the risks and cost of adversarial litigation in order to make a point or assert a legal right rather than compromise in a settlement.

• What are Marriage Rights and Benefits?

  Marriage Rights and Benefits

  Copyright 2010 Nolo

  
  

  Learn some of the legal and practical ways that getting married changes your life.

  Whether or not you favor marriage as a social institution, there's no denying that it confers many rights, protections, and benefits -- both legal and practical. Some of these vary from state to state, but the list typically includes:

  Tax Benefits

  • Filing joint income tax returns with the IRS and state taxing authorities.
  • Creating a "family partnership" under federal tax laws, which allows you to divide business income among family members.

  Estate Planning Benefits

  • Inheriting a share of your spouse's estate.
  • Receiving an exemption from both estate taxes and gift taxes for all property you give or leave to your spouse.
  • Creating life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.
  • Obtaining priority if a conservator needs to be appointed for your spouse -- that is, someone to make financial and/or medical decisions on your spouse’s behalf.

  Government Benefits

  • Receiving Social Security, Medicare, and disability benefits for spouses.
  • Receiving veterans' and military benefits for spouses, such as those for education, medical care, or special loans.
  • Receiving public assistance benefits.

  Employment Benefits

  • Obtaining insurance benefits through a spouse's employer.
  • Taking family leave to care for your spouse during an illness.
  • Receiving wages, workers' compensation, and retirement plan benefits for a deceased spouse.
  • Taking bereavement leave if your spouse or one of your spouse’s close relatives dies.

  Medical Benefits

  • Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility.
  • Making medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.

  Death Benefits

  • Consenting to after-death examinations and procedures.
  • Making burial or other final arrangements.

  Family Benefits

  • Filing for stepparent or joint adoption.
  • Applying for joint foster care rights.
  • Receiving equitable division of property if you divorce.
  • Receiving spousal or child support, child custody, and visitation if you divorce.

  Housing Benefits

  • Living in neighborhoods zoned for "families only."
  • Automatically renewing leases signed by your spouse.

  Consumer Benefits

  • Receiving family rates for health, homeowners', auto, and other types of insurance.
  • Receiving tuition discounts and permission to use school facilities.
  • Other consumer discounts and incentives offered only to married couples or families.

  Other Legal Benefits and Protections

  • Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).
  • Suing a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these laws are available in only a few states).
  • Claiming the marital communications privilege, which means a court can’t force you to disclose the contents of confidential communications between you and your spouse during your marriage.
  • Receiving crime victims' recovery benefits if your spouse is the victim of a crime.
  • Obtaining immigration and residency benefits for non citizen spouse.
  • Visiting rights in jails and other places where visitors are restricted to immediate family.

  Note that if you are in a same-sex marriage in Massachusetts or a domestic partnership or civil union in any of the states that offer those relationship options, many of the benefits of marriage won't apply to you, because the federal government does not recognize these same-sex relationships. For example, you may not file joint federal income tax returns with your partner, even if your state allows you to file jointly. And other federal benefits, such as COBRA continuation insurance coverage, may not apply. Consult a lawyer with expertise in this area to learn more about the rights and benefits available to same-sex couples.

• Is a Prenuptial Agreement Right for You?

  Is a Prenuptial Agreement Right for You?

  Copyright 2010 Nolo

  
  by Shae Irving & Katherine E. Stoner, Attorney-Mediator
  

  For premarital agreements, follow these steps to decide whether a prenup makes sense.

  Once you understand the basics of premarital agreements, you should focus on the specifics of your circumstances and figure out whether a prenup is what you need. The following three steps will help.

  Step One: Take a Prenup Quiz

  If you or your fiancé answer yes to any of the following questions, there is a good chance a prenup would be helpful. If you answer no to every question, you might still benefit, but having a prenup might not be as critical.

  • Do you own any real estate?
  • Do you own more than $50,000 worth of assets other than real estate?
  • Do you own all or part of a business?
  • Do you currently earn a salary of more than $100,000 per year?
  • Have you earned more than one year's worth of retirement benefits or do you have other valuable employment benefits, such as profit sharing or stock options?
  • Does one of you plan to pursue an advanced degree while the other works?
  • Will all or part of your estate go to someone other than your spouse when you die?

  Step Two: Identify Important Issues

  Jot down on a piece of paper a list of the things you might want to include in a prenup, such as identifying separate property, decisions about how you will handle money and property while you are married, whether alimony will be paid or waived in the event of divorce, retirement benefit agreements, and agreements about how you want to leave property at your death.

  Common Prenup Topics Here's a quick list of some of the issues that can be included in a prenup: separate vs. joint property estate planning issues, such as providing for children from prior marriages or leaving family property how to handle a separate business retirement benefits non responsibility for the other person's debts who gets what, including alimony, if you separate or divorce procedures for filing tax returns, including allocating income and deductions who pays household bills -- and how whether to have joint bank accounts and, if so, how to manage them agreements about specific purchases or projects, such as buying a house together or starting up a business how you will handle credit card charges agreements to set aside money for savings agreements for putting each other through college or professional school provisions for a surviving spouse in your estate plan or through life insurance coverage, and how to settle any future disagreements, such as with the help of a mediator or by a private arbitrator acting as judge.

  Step Three: Assess Your Comfort Level

  Next, ask yourself this question: On a scale of one to five, how comfortable am I with the idea of having a prenup?

  Score of one or two. If you give yourself a one or a two, try to identify the reasons for your discomfort. If it is because you are uncertain how the terms of a prenup might compare to your legal rights without one, you may want to investigate the laws of your state before making a decision.

  If you are pretty sure you want a prenup and your discomfort comes from fear of starting an argument or offending your fiancé by asking, then you might take this as an opportunity to practice talking about difficult matters in a loving way. You may even find it helpful to work on communication and negotiation skills with a counselor who specializes in premarital counseling.

  The same is true if you don't think you want a prenup and you feel that your fiancé is pressuring you to make one. This is a good time to practice communicating -- clearly and kindly -- about stressful issues. Whether or not you eventually make a prenup, you're sure to learn more about what you each need and want.

  Score of three, four, or five. If you scored a three, four, or five on the comfort scale, you are ready to start talking specifics with your fiancé. Even so, bear in mind that every good conversation involves some give or take. Don't assume that you and your fiancé will see eye-to-eye on everything, especially when you first start talking. Allow plenty of time to talk -- and be willing to get help if you need it.

• What are Prenuptial Agreement Benefits and Drawbacks?

  Prenuptial Agreement Benefits and Drawbacks

  Copyright 2010 Nolo

  
  by Shae Irving & Katherine E. Stoner, Attorney-Mediator
  

  Here's a quick glance at the pros and cons of premarital agreements.

  If you're thinking about making a prenuptial agreement, it can be helpful to look at the most common advantages -- and challenges. We'll look at the good news first, then we’ll talk about a few downsides.

  Prenup Benefits

  Making a prenup can:

  • protect your separate property
  • support your estate plan
  • define what property is considered marital or community property
  • reduce conflicts and save money if you divorce
  • clarify special agreements between you, and
  • establish procedures and ground rules for deciding future matters.

  Making a prenup may actually strengthen your relationship. While people often imagine that negotiating a prenup leads to conflict, communicating about money matters can actually improve the quality of your relationship and support good communication in your marriage. Even if you don't end up signing a written agreement, talking frankly about money and property can eliminate misunderstandings that might otherwise crop up between you. Remember that sooner or later, you and your intended will be discussing money. If you think you can handle it, most psychologists and legal experts would tell you there's no time like the present.

  Disadvantages of a Prenup

  While there is a lot to be said for a carefully considered, clearly written prenup, there are some downsides to consider.

  It's not romantic. Let's face it, a prenup is not romantic. Being engaged conjures up images of candlelit dinners and walks in the moonlight. Although marriage is a financial partnership as well as a romantic one, if you feel that discussing something as mundane as property and finances, as well as the possibility of divorce, will mar an otherwise beautiful time of your lives, you may not be candidates for a prenup.

  The time may not be right. The need for a prenup is partly a question of timing. The issues covered in a prenup will probably arise sooner or later in your marriage: money management, property rights, responsibility for debts, estate planning. And if your marriage doesn't work out, you'll certainly need to deal with divorce decisions.

  But making a prenup forces you to confront many of these issues now, at a time when your relationship may still be new and untested. Discussing what goes into a prenup could be unpleasant and stressful, leaving one of you with bad feelings about the relationship. (If now is not the time to make a written agreement, you may be able to make a contract after you marry (a "postnup"); but postnups have their own disadvantages, including stricter legal rules.)

  State law may protect you without a prenup. The laws of your state may do a fine job of accomplishing what you want. For example, you may live in a community property state where assets owned before marriage are separate property and those accumulated during marriage are community property that is owned fifty-fifty. If this is essentially what you would want in your prenup, or maybe even better than what you expected, why go through the work of negotiating a prenup? Still, you'll want to be sure that you're not facing any special circumstances where your state law is unclear.

  If you're leaning toward making a prenup and feel ready to consider specifics, the next step is to take a careful look at your own situation.

• What about Health Care Directives and Financial Powers of Attorney for Your Partner?

  Health Care Directives and Financial Powers of Attorney for Your Partner

  Copyright 2010 Nolo

  
  

  To have the power to make medical and financial decisions for your partner, you must prepare the right legal documents.

  If you ever become unable to make your own health care decisions or manage your own finances -- because of injury, serious illness, or advanced age -- you probably want your partner to step in and take care of you. Unfortunately, unmarried partners, unlike their married counterparts, often aren't permitted to handle medical or financial decisions for each other without signed authorization.

  There are a few simple legal documents you should prepare if you want to ensure that critical decisions stay in the hands of your partner: a durable power of attorney for finances and health care directives.

  Without these documents, your partner may face tremendous emotional and practical problems when trying to make health care decisions for you in the event of a medical emergency or handle a simple financial transaction on your behalf when you're not able to. At worst, your health care and finances may be placed in the hands of a biological relative who won't consider your partner's input, and this relative may well make decisions that go against what you want.

  Fortunately, the documents you need are straightforward and usually easy to complete. (To learn more about both medical and financial powers of attorney, see Nolo's Power of Attorney Resource Center.)

  Health care declarations. First, you need a health care "declaration," a written statement you make directly to medical personnel that spells out your wishes for medical care if you become incapacitated. Your declaration functions as a contract with your treating doctor, who must either honor your wishes for health care or transfer you to another doctor or facility that will honor them.

  Durable powers of attorney for health care. The second document is usually called a "durable power of attorney for health care." In this document you appoint the person you choose -- most likely your partner -- to see that your doctors and other health care providers give you the kind of medical care you want to receive. You can also use your durable power of attorney for health care to give your partner (who may be called your "attorney-in-fact," "agent," or "proxy," depending on where you live) other rights to participate in your medical care, including:

  • directing your health care under any circumstances that you don't specifically address in your declaration
  • hiring and firing medical personnel
  • visiting you in the hospital or other facility even when other visitors are restricted
  • having access to medical records and other personal information, and
  • getting court authorization to enforce your health care wishes if a hospital or doctor refuses to honor them for any reason.

  Advance health care directives. In some states, your declaration and durable power of attorney for health care will be combined into a single document, often called an "advance health care directive."

  Who Can Make Health Care Directives?

  You can make valid health care directives if you are at least 18 years old and of sound mind. Being of sound mind essentially means that you are able to understand what the document means, what it contains, and how it works. Physically disabled people may make valid health care documents; they can direct another to sign for them if they are unable to do so.

  You may change or revoke your health care directives at any time as long as you are of sound mind.

  Financial Powers of Attorney

  A durable power of attorney for finances allows you to name someone you trust (called your "attorney-in-fact" or "agent") to handle your finances if you become unable to take care of yourself. Every state recognizes this type of document. (To learn more about financial powers of attorney, read Nolo's article Durable Financial Power of Attorney: How it Works.)

  As with documents directing medical care, you should seriously consider making a durable power of attorney for finances if you want your partner to manage your money if you become unable to. If you don't prepare the document and you later become incapacitated, your partner or other family members will have to ask a court for authority over your financial affairs. These proceedings, called "conservatorship proceedings," can be time-consuming and expensive -- and they can be disastrous for unmarried couples if the court names another family member to take over, especially if your finances have been intertwined with those of your partner for a long time.

  You can make your financial power of attorney effective immediately, or you can specify that it should go into effect only if you become incapacitated; the latter is called a "springing" power of attorney. While some people are more comfortable making a springing document, an immediately effective document holds a potential advantage for unmarried couples in a long-term, trusting relationship. If you make your document effective immediately, your partner can handle financial transactions for you at any time, even when you are not incapacitated. This can be useful if you are out of town, under the weather, or temporarily unavailable for any other reason.

  When you make a durable power of attorney for finances, you can give your partner (or other attorney-in-fact) as much or as little control over your finances as you wish. The powers you grant may include:

  • using your assets to pay your bills and everyday expenses
  • buying, selling, maintaining, paying taxes on, and mortgaging real estate and other property
  • collecting benefits from Social Security, Medicare, or other government programs or civil or military service
  • investing your money in stocks, bonds, and mutual funds
  • handling transactions with banks and other financial institutions
  • buying and selling insurance policies and annuities for you
  • filing and paying your taxes
  • operating your small business
  • claiming property you inherit or are otherwise entitled to
  • hiring someone to represent you in court, and
  • managing your retirement accounts.

  Like health care directives, you can make a durable power of attorney for finances if you are at least 18 years old and of sound mind. And you can change or cancel your document at any time, as long as you are of sound mind.

• How should I go about Searching for Hidden Assets at Divorce?

  Searching for Hidden Assets at Divorce

  Copyright 2010 Nolo

  
  

  How to find property your spouse is concealing when you divorce.

  Common ways in which a spouse may undervalue or disguise marital assets include:

  • Antiques, artwork, hobby equipment, gun collections, and tools that are overlooked or undervalued. Look for antique furnishings, original paintings, or collector-level carpets at your spouse's office.
  • Income that is unreported on tax returns and financial statements.
  • Cash kept in the form of travelers' checks. You may be able to find these by tracing bank account deposits and withdrawals.
  • A custodial account set up in the name of a child, using the child's Social Security number.
  • Investment in certificate "bearer" municipal bonds or Series EE Savings Bonds. These do not appear on account statements because they are not registered with the IRS. (The government is phasing out these bonds, realizing that it is losing a lot of money.)
  • Collusion with an employer to delay bonuses, stock options, or raises until a time when the asset or income would be considered separate property.
  • Debt repayment to a friend for a phony debt.
  • Expenses paid for a girlfriend or boyfriend, such as gifts, travel, rent, or tuition for college or classes.
  • Retirement accounts that your spouse never tells you about.

  In addition, business owners may try to hide assets in these ways:

  • Skimming cash from the business.
  • Salary payments to a nonexistent employee, with checks that will be voided after the divorce.
  • Money paid from the business to someone close -- such as a father, mother, girlfriend, or boyfriend -- for services that were never actually rendered (the money is given back to your spouse after the divorce is final).
  • A delay in signing long-term business contracts until after the divorce. Although this may seem like smart planning, if the intent is to lower the value of the business it is considered hiding assets.

  You may have difficulty finding these items or getting the proof you need to show they exist. Formal discovery procedures through litigation may help. For instance, you could take the deposition (legal interview) of your spouse's boss or payroll supervisor. But you may also need to hire a forensic accountant or a private investigator. (A forensic accountant is an accountant who is trained to look into accounting practices in order to gather evidence that can be used in court.) Usually an attorney can refer you to these specialists.

  Document Your Finances Before Filing for Divorce If you suspect that your spouse may attempt to hide assets, it's best to start investigating your household and business finances before initiating divorce proceedings. Keep copies of important documents (such as tax returns, bank account statements, and pay stubs) outside the home if you're still living with your spouse or partner.

• What are the Types of Adoption?

  Types of Adoption

  Copyright 2010 Nolo

  
  

  Learn about the different ways you can adopt a child.

  There are quite a few different ways to bring a child into your life, or confirm your legal relationship with one, through adoption. Here’s the lowdown on the different ways that adoption can work.

  Agency Adoptions

  Agency adoptions involve the placement of a child with adoptive parents by a public agency, or by a private agency licensed or regulated by the state.

  Public agencies generally place children who have become wards of the state for reasons such as orphanage, abandonment, or abuse. Private agencies are sometimes run by charities or social service organizations. Children placed through private agencies are usually brought to the agency by a parent or parents who have or are expecting a child they want to give up for adoption.

  Independent Adoptions

  In a private, or independent, adoption, no agency is involved in the adoption. Some independent adoptions involve a direct arrangement between the birth parents and the adoptive parents, while others use an intermediary such as an attorney, doctor, or clergyperson. For most independent adoptions, whether or not an intermediary is involved, the adopting parents will usually hire an attorney to take care of the court paperwork.

  Most states allow independent adoptions, though many regulate them quite carefully. Independent adoptions are not allowed in Connecticut, Delaware, or Massachusetts.

  An "open adoption" is an independent adoption in which the adoptive parents and birth parents have contact during the gestation period and the new parents agree to maintain some contact with the birth parents after the adoption, through letters, photos, or in-person visits.

  Identified Adoptions

  An identified, or designated, adoption is one in which the adopting parents and the birth mother find each other and then ask an adoption agency to take over the rest of the adoption process. The process is a hybrid of an independent and an agency adoption.

  Prospective adoptive parents are spared the waiting lists of agencies by finding the birth parent themselves, but they reap the benefits of the agency's counseling services and experience with adoption legalities. Everyone may simply feel more comfortable if an agency is involved. Identified adoptions are available to parents in the states (Connecticut, Delaware, and Massachusetts) that ban independent adoptions.

  International Adoptions

  In an international adoption, the new parents adopt a child who is a citizen of a foreign country. In addition to satisfying the adoption requirements of both the foreign country and the parents' home state in the U.S., the parents must obtain an immigrant visa for the child through U.S. Citizenship and Immigration Services (USCIS, formerly called the INS). The child will be granted U.S. citizenship automatically upon entering the United States.

  There have been some recent changes to international adoption law:

  The Hague Adoption Convention. As of April 1, 2008, the Hague Adoption Convention governs intercountry adoptions between the United States and other Convention member countries. The treaty establishes federal oversight of adoption agencies here and policies overseas. The goal is to protect children, birth parents, and adoptive families from unethical adoption practices, including child abduction and hidden fees.

  New adoption requirements. Agencies in the U.S. must now be certified by the State Department, and parents planning an international adoption must prove to the State Department that the foreign country’s agencies have provided counseling for the birth parents and obtained a legal consent from them, that a local placement has been considered, and that the child has been properly cleared for adoption in the U.S. These new provisions may cause international adoptions to take even longer than they have in the past, but they will also protect parents from predatory or corrupt agencies in other countries.

  You can adopt a foreign child through an American agency that specializes in international adoptions -- or you can adopt directly. Most people use an agency, because direct adoption can be difficult.

  Stepparent Adoptions

  In a stepparent adoption, a parent's new spouse adopts a child the parent had with a previous partner. Stepparent adoption procedures are less cumbersome than agency or independent adoption procedures. The process is quite simple, especially if the child's other birth parent consents to the adoption. If the other birth parent cannot be found or if he or she refuses to consent to the adoption, there is more paperwork to do and the adoptive parents may need an attorney.

  Same-Sex Adoptions

  Rules about same-sex couples vary from state to state. In states that have some form of recognition for same-sex relationships, same-sex couples may adopt children together and one partner may adopt the child of the other partner. In some states, the adoption can be done under the streamlined stepparent adoption procedures, making the process inexpensive, quick, and easy. For more information about adoption by same-sex couples, see Nolo’s article Gay and Lesbian Adoption and Parenting.

  Relative (Kinship) Adoptions

  In a relative adoption, also called a kinship adoption, a member of the child's family steps forward to adopt. Grandparents often adopt their grandchildren if the parents die while the children are minors, or if the parents are unable to take care of the children for other reasons (such as being in jail or on drugs). In most states, these adoptions are easier than non-relative adoptions. If the adopted child has siblings who are not adopted at the same time, kinship adoption procedures usually provide for contact between the siblings after the adoption.

  Adult Adoptions

  In most states, it’s legal for one adult to adopt another as long as there’s at least a ten-year age difference and the parties can show why the adoption is in the interests of both the parties involved and the public good. Often, adult adoptions are stepparent adoptions that the family didn’t get around to when the younger person was a minor, but wants to complete in order to assure inheritance rights.

  Sometimes, older adults who don’t have children of their own meet younger persons who they wish to treat as their children for inheritance purposes. There are protections in place in many states requiring oversight of adult adoptions where care givers of the elderly are involved, in order to prevent elder financial abuse.

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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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