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Divorce

  • What is a legal divorce?

    A divorce is a method of terminating a marital relationship between two individuals. From a legal standpoint, your divorce will give each person the legal right to marry someone else; it will legally divide your assets and debts, and determine the care and custody of your children.
  • How do you begin the divorce process?

    A divorce is initiated by filing a Petition for Dissolution of Marriage in the District Court where you live. New Mexico is a no fault state. This means that you are not required to prove that your spouse violated your marital relationship in order to obtain a divorce. In a contested divorce, the respondent spouse is “served” with the Petition. In an uncontested divorce, the petition is held and the respondent spouse is asked to come to the attorney’s office to sign all of the necessary documents to conclude the divorce.
  • What happens if my spouse won’t agree to sign the papers?

    This is what we call a contested divorce. A contested divorce sometimes results in going to trial to resolve the issues of the divorce; however, this does not always have to be the case. Very few divorce cases actually go to trial. There are many methods used to resolve your divorce with less emotional and financial stress. To aid settling your case without going to trial, each side is allowed to make discovery requests which include Interrogatories, Requests for Production, Requests for Admission, and Depositions. A negotiation may also be reached by mediation with the respondent spouse and his or her attorney.
  • What happens if a negotiation is not reached?

    If the negotiation process fails to render an agreement, the parties will go to trial to resolve the issues. The trial will be conducted by a Judge and evidence will be presented in the form of testimony from the parties and witnesses as well as from documents and any other forms of admissible evidence.
  • What happens if a negotiation is not reached?

    If the negotiation process fails to render an agreement, the parties will go to trial to resolve the issues. The trial will be conducted by a Judge and evidence will be presented in the form of testimony from the parties and witnesses as well as from documents and any other forms of admissible evidence.
  • What is an uncontested divorce?

    An uncontested divorce simply means that both sides agree to the divorce. In most situations, one attorney can be used in this matter. Although a lot of paperwork is involved and handled by the attorney, this type of divorce is one of the easiest and cheapest ways for you to obtain a divorce.
  • Who pays the bills and how is support determined while the divorce is pending?

    Your attorney will ask the court for an interim division of income and debt after the petition is filed. If there is money left after the parties’ fixed monthly expenses are paid, the remaining money is divided equally, with adjustments for the party who has temporary custody of the children.
  • How long does it take?

    An uncontested divorce can be filed and finalized on the same day. Because the majority of divorce cases are settled without the need for trial, a divorce case typically takes as long as it takes the parties to reach an agreement. A divorce may take as little as a few weeks or stretch out over a few years.
  • How much does it cost?

    Most domestic relations matters are handled by our firm on an hourly basis. Our attorneys bill at rates ranging from $175.00-$225.00 per hour. Our clients are asked to post a retainer, which is simply a prepayment of attorney’s fees that is placed in a trust account and billed each month as the attorney works on the case. Our retainers begin at $1,500.00. Any portion of the retainer that is unused at the end of the case is promptly returned to the client. For some uncontested divorces, we may quote our clients a flat fee based upon the complexity of the issues in the case.

    The overall cost of a divorce is based largely on the complexity of the issues, and the relative positions of the parties

 

Child Custody, Timesharing and Support

  • What are the Child Support Guidelines?

    The Court has adopted guidelines intended to provide guidance about what it actually costs to raise children. The Guidelines fix a range of support that should be paid by both parents, proportionate to their incomes. The Court presumes that the Guidelines are correct. However, you may negotiate child support amounts beyond or even below those in the Guidelines. The Court may modify the levels in the Guidelines if it decides that, due to the particular circumstances of your family, the amount is unjust or inappropriate. Child care costs are considered separately.
  • How does the Court determine custody?

    When the parties cannot reach an agreement regarding the custody of children, the Court determines the custodial arrangement that is in the best interests of the children. To make its determination of custody and visitation, the Court hears testimony from both parties, any experts they want to present, and any other parties who have direct knowledge of the ability of each spouse to parent the children.
  • What is the difference between legal and physical custody?

    Physical custody refers to where the child lives and who has responsibilities associated with daily childcare. Legal custody is the decision-making responsibilities associated with the education, healthcare and religious upbringing of a child.
  • What if the custody arrangements aren’t working out?

    It is not always easy to modify a custody arrangement that has been ordered by the court or agreed upon by you and your child’s other parent. The agreement itself may set out methods by which it can be changed. Your state will also have laws that apply to custody modification. It is typically more difficult to change the custody arrangements than it was to set them in the first place; there must have been a substantial change in the circumstances this time around. An experienced family law attorney can advise you on your rights in your state.
  • Is joint custody better?

    While no one solution is right for everybody, most children of divorce benefit from the ongoing involvement of both parents. Joint custody will not work if the parents are not living in the same area or if the parents cannot work together. Family circumstances like domestic violence, physical or sexual abuse, chemical dependency and neglect also affect the court’s determination.
  • If my former spouse is behind on child support payments, can I prevent his or her visitation?

    Parenting time and child support are not dependent on each other. It is not considered to be in the best interests of the child to prevent contact with the other parent because of child support problems. You have other remedies, like going to court or the child support enforcement office, if your former spouse is not making child support payments.
  • I want to move to another state with my child. Can I do that?

    This is another custody matter that varies from state to state, but most states share some overriding principles. The court will probably weigh the reason for the move; its probable effect on the child; whether you have sole or joint custody; if the child’s other parent has objected to the move; and how often the other parent will be able to see the child.
  • If the judge in my divorce case orders a custody evaluation, what should I do?

    Cooperate with the custody evaluator; the evaluation is designed to find out what is in the best interests of your children. Custody evaluations are a regular part of contested custody cases. Share any concerns that arise during the evaluation with your attorney.
  • What is parental alienation syndrome?

    Parental alienation syndrome occurs when the first parent convinces the child that the second parent has nothing to offer the child (or that the second parent is a bad parent or spouse), and the child comes to see the second parent in a uniformly negative light. The child insists on staying with the first parent and refuses to see the second, usually in order to show loyalty to the first parent. Courts disapprove of this type of behavior on the part of a parent and typically demonstrate such disapproval when making custody and visitation decisions.

 

Guardianship and Conservator

  • When Is A Guardian Required for an Adult?

    It may be necessary to petition a court to appoint a legal guardian for persons:
    - Who have a physical or mental problem that prevents them from taking care of their own basic needs;
    - Who as a result are in danger of substantial harm; and
    - Who have no person already legally authorized to assume responsibility for them.
    Under some circumstances, it may be necessary for a court to appoint an emergency guardian, who can act ON AND individual’s behalf during a crisis (such as immediately following a car accident) until you regain your ability to make your own decisions.
  • How is a Guardian Appointed?

    The person seeking the appointment of a guardian files a petition with the court where the allegedly legally incapacitated person resides. A petition is ordinarily accompanied by medical affidavits or other sworn statements which evidence the person’s incapacity, and either identifies the person or persons who desire to be named guardian or requests the appointment of a public guardian.

    The court arranges for any necessary evaluation of the allegedly legally incapacitated person. Often, this will involve the appointment of a “guardian ad litem”, a person who is appointed to provide an independent report to the court on behalf of the allegedly legally incapacitated person. If appointed, the guardian ad litem will meet with the allegedly incapacitated person, inform that person of his or her legal rights, and report back to the court on the person’s wishes. The guardian ad litem may also speak to the petitioner, to health care providers, and to other interested individuals in order to provide the court with full information about the allegedly incapacitated person’s condition and prognosis.

    If the allegedly incapacitated person contests the appointment of a guardian, a trial is scheduled during which sworn testimony will be given, and at the conclusion of which the judge will decide if the petitioner met the requisite burden of proof for the appointment of a guardian. The allegedly incapacitated person is entitled to an attorney.

    If the allegedly incapacitated person consents to the petition, or is unable to respond to inquiries due to disability, the court will hold a hearing at which witnesses will provide sworn testimony to support the allegations in the petition. If the evidentiary basis is deemed sufficient, the guardian will be appointed.

    If a guardian is appointed, the judge will issue the guardian legal documents (often called “letters of authority”) permitting the guardian to act on behalf of the legally incapacitated person.

  • What Are a Guardian’s Duties?

    The guardian makes decisions about how the person lives, including their residence, health care, food, and social activity. The guardian is supposed to consider the wishes of the incapacitated person, as well as their previously established valued, when making these living decisions.

    A guardian may be required to post a bond, unless the requirement is waived by the court. In most jurisdictions where bond is required, waivers are routine.

  • How can a Guardianship be ended?

    A guardianship can be terminated by the court which created it. This ordinarily happens if the legally incapacitated person recovers from the incapacity that necessitated the guardianship. A particular guardian’s role may be terminated by the court or by resignation, in which case the court will ordinarily appoint a successor guardian to take over management of the legally incapacitated person’s affairs. A guardianship also ends upon the death of the legally incapacitated person.
  • What about Co-Guardians?

    Sometimes, relatives of a legally incapacitated person will request that they be made co-guardians for that person. This may be done, but it may be necessary for both co-guardians to approve any decision made on behalf of the legally incapacitated person. This will create delay in the administration of emergency care, and can create difficulty in establishing authority for even minor decisions. Thus, it is usually advisable not to have co-guardians, but instead to name a single guardian, perhaps with the other relative named as a successor guardian.
  • Avoiding Guardianship

    It is possible to avoid the necessity of a guardianship through estate planning. A good estate plan will include a medical power of attorney which will enable a trusted individual to make health care decisions for you in the event of incapacity, and a general durable power of attorney to permit a trusted individual to manage your personal affairs. To a considerable extent, those documents can specify how you wish to live, and how you wish to be treated, in the event of disability – whereas a court or guardian may make decisions with which you would disagree. In most cases, when these documents have been executed in accord with the laws of your state, it will not be necessary for your loved ones to seek the appointment of a guardian or conservator should something happen to you – something that can be cumbersome and emotionally taxing at an already difficult time.

 

Domestic Violence

  • Domestic violence signs that you’re in an abusive relationship

    Your Inner Thoughts and Feelings Do you:

    • feel afraid of your partner much of the time?
    • avoid certain topics out of fear of angering your partner?
    • feel that you can’t do anything right for your partner?
    • believe that you deserve to be hurt or mistreated?
    • wonder if you’re the one who is crazy?
    • feel emotionally numb or helpless?
    Your Partner’s Belittling Behavior Does your partner:

    • humiliate or yell at you?
    • criticize you and put you down?
    • treat you so badly that you’re embarrassed for your friends or family to see?
    • ignore or put down your opinions or accomplishments?
    • blame you for his own abusive behavior?
    • see you as property or a sex object, rather than as a person?
    Your Partner’s Violent Behavior or Threats Does your partner:

    • have a bad and unpredictable temper?
    • hurt you, or threaten to hurt or kill you?
    • threaten to take your children away or harm them?
    • threaten to commit suicide if you leave?
    • force you to have sex?
    • destroy your belongings?
    Your Partner’s Controlling Behavior Does your partner:

    • act excessively jealous and possessive?
    • control where you go or what you do?
    • keep you from seeing your friends or family?
    • limit your access to money, the phone, or the car?
    • constantly check up on you?

 

Real Estate Law

  • What is real estate?

    Real estate (also called real property) refers to land and things attached to land. For most consumers, real estate consists of their home and the lot surrounding it. Commercial real estate may include factories, equipment, and other facilities. In addition to buildings and equipment, resources existing on (or under) the land, including minerals and gas, are part of real estate. Some of these components of real estate can be sold separately.
  • What are deeds for?

    Deeds indicate, and are generally required to transfer, ownership of real estate. The different kinds of deeds, such as the warranty deed, quit claim deed and grant deed, transfer different interests in property.
  • What is a disclosure statement?

    A disclosure statement is a form a property seller is required to complete and provide to the buyer, disclosing certain defects and other information about the property.
  • What are some typical restrictions imposed on property owners?

    Real estate owners can’t do whatever they want on their property. Federal laws provide environmental restrictions, while local ordinances control everything from noise levels to fence height. Local law is also the usual source of zoning rules, which limit the uses of property in certain areas. New Mexico laws regulate who can access property and how boundaries are established and changed.
    Private agreements and other restrictions may also control property use. For example, a development may contain restrictive covenants regarding lot size, architectural design, vehicle parking, and other details.
  • What is joint tenancy?

    Joint tenancy is an arrangement in which more than one person owns a piece of property. Many spouses own their property as joint tenants, with equal shares in the property. Joint tenancy can include a right of survivorship, which allows the property to transfer to the other tenants when one joint tenant dies.
    Tenancy in the entirety is similar to joint tenancy, except each spouse holds an undivided half of the property. Tenants in common can own unequal shares of property and is a common way for commercial partners and cohabiting unmarried couples to hold property.
    An attorney can help a real estate purchaser to determine which form of ownership is most beneficial under his or her specific circumstances.
  • What happens to a deed after it is signed and notarized?

    A signed deed should be recorded, or filed, in the County Clerk’s Office. To record the deed, a person must deliver the signed, original deed to the clerk who will stamp the deed with the date and officially record the transaction. Recording the deed gives public notice of the change in ownership and the interests in the property.
  • How do mortgages work?

    When a bank or other financial institution provides a loan for the purchase of real estate, a mortgage interest is created. The bank’s loan is secured by an interest in the property. Mortgages can be fixed rate or adjustable. Some government programs offer special mortgage rates or programs for veterans or other individuals. Some homeowners will take on a second mortgage or a home equity loan secured by their property for home improvement or other financial needs. All of these mortgage interests can be foreclosed if the homeowner does not meet his or her financial obligations under the loan.
  • What happens in a mortgage foreclosure?

    If a homeowner fails to make mortgage payments, the lender may foreclose on the property. Depending on the terms of the mortgage contract, the lender may do a statutory foreclosure without going to court or a judicial foreclosure in court. New Mexico laws provide strict regulations regarding proper notices and opportunities to pay before the property is sold in a foreclosure sale. A homeowner may stay in his or her home during a foreclosure. A lender may want to avoid foreclosure and its costs by working out an agreement with the homeowner, frequently accepting interest-only payments or partial payments in order to assist the homeowner. If your home mortgage is at risk of foreclosure, you should consult with an attorney as soon as possible.

 

Landlord & Tenant

  • What law covers landlord-tenant disputes?

    The landlord and tenant relationship is a contract, governed by contract and property law. To resolve disputes between landlords and tenants, the court should look to the contractual agreement, if any, between them and also the Uniform Owner-Resident Relations Act.
  • Does the Uniform Owner-Resident Relations Act cover all landlord-tenant relationships?

    The Uniform Owner-Resident Relations Act applies to, regulates and determines rights, obligations and remedies under a rental agreement for dwelling units. The Act does not cover commercial properties, such as rental of a business space. The Act applies to mobile home park owners and residents unless a provision of the Mobile Home Park Act directly conflicts with the Uniform Owner-Resident Relations Act. It also applies to mobile homes rented in locations other than mobile home parks.
  • What if there is a conflict between the contract and the Uniform Owner-Resident Relations Act?

    In general, the landlord and tenant can agree to contractual terms that are different from the Uniform Owner- Resident Relations Ac. The court will usually uphold such terms – as long as the Act or other laws do not prohibit such terms. If the court finds that a provision of the rental agreement was inequitable at the time of the contract, the court may limit the application of the provision in order to avoid an unjust result. Furthermore, no rental agreement may include a provision in which the resident or owner agrees to waive or forego rights or remedies under law. What if the court finds that the owner knowingly included illegal provisions in the rental agreement? If it is shown that an owner deliberately uses a rental agreement that contains provisions that he or she knows are prohibited by law, then the resident can recover damages sustained because of the illegal provision, plus reasonable attorney’s fees.
  • Does the Uniform Owner-Resident Relations Act apply to oral agreements?

    It has not been definitively resolved whether the Act can be enforced in the absence of a written lease agreement. Section 47-8-3(P) of the Uniform Owner-Resident Relations Act, defines “rental agreement” as all agreements between an owner and resident. This would imply that the Act covers oral agreements also. Note, however, that under §47-8-20, the owner is obligated to provide a written rental agreement to the tenant prior to the beginning of occupancy.