Although I began my alternative dispute resolution (ADR) career in the labor/employment field, I have since expanded my practice to include domestic relation mediation and child protection related work. Perhaps this seems like an odd combination to some. However, I see a lot of similarities in these areas--work and family--in that both deal with intensely personal issues that affect major portions of our life's endeavors.
I discuss neutrality principles generally and labor and employment issues in particular on my other blogs. See On Being a Neutral, and On New Mexico Labor and Employment Law. Here, I will focus on "matters of family, child protection and home." In this, my inaugural posting, I will address New Medico separation, divorce and parentage proceedings, from perspective of a domestic relations mediator.
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Introduction
Dissolution of a relationship is always painful. There are usually strong and conflicted emotions involved, as well as a lot of shared memories, possessions and other baggage. There may also be legal relationships and/or children that require special treatment. This article provides an overview of typical issues occurring in separations, divorces. and disputes involving parentage.
No children and no marriage
In the case of cohabitation without children, the parties in New Mexico may be able to simply divide out their respective property and go their separate ways.
New Mexico law does not recognize "common law marriages" or domestic partnerships, and does not authorize same sex marriages. The New Mexico Attorney General has opined that the State courts would recognize same sex unions authorized under the laws of other state, but the issue has not been resolved yet by the courts. See http://en.wikipedia.org/wiki/Recognition_of_same-sex_unions_in_New_Mexico.
However, non-marital and/or same sex couples may have contract or tort remedies in the event property cannot be amicably separated.
Restraining or Protection Orders
In event of a break up, separation or divorce, one or both parties may also require a retraining order against the other.
There are criminal and civil restraining orders, and also qualified domestic orders of protection. Which is appropriate and available will depend on your individual circumstances.
A domestic order is designed to protect a party from domestic violence by certain household members. Criminal restraining orders may be appropriate if one party has engaged in criminal conduct against the other. Civil restraining orders may be available if neither of the other two are appropriate.
Restraining orders and domestic orders of protection are available for non-marital relationships, including same sex relationships.
Divorce, generally
A party initiates any divorce by filing a Petition for divorce, to which the other party has 30 days to file a Response. New Mexico is a "no fault" divorce state, meaning the Petitioner need only establish the union is broken due to "irreconcilable differences." In practice, this standard is very loose and met merely by virtue of the fact that one party no longer wishes to be married to the other!
New Mexico is also a "community property" state and every divorce will require an equitable distribution of joint property and debt. Joint property and debt is basically that which was earned, purchased or incurred during the course of marriage. It will typically include retirement benefits earned during the union, although special orders may be required to effect the division through an agency charged with distributing the pension. Joint property does not include gifts and inheritances that are made expressly to one party to the union, or property acquired with separate property that has not been "mingled" with joint property.
In some cases a spouse may be eligible for spousal maintenance. Typically, this is appropriate where one party o the marriage has little or no education, work experience and/or transferable skills. In the case of an older spouse who has never worked, it may be appropriate to award spousal maintenance for the duration of his or her life. In the case of younger spouses, however, it is more likely the court would review the matter and gradually scale back maintenance as that party increased his or her earning power, such as through work experience or education.
In some cases, the parties may have entered into a pre- or post-nuptial agreement that provides for a different distribution of property than would otherwise apply under the law. Such agreements must meet the usual elements necessary for a valid contract. Additionally, New Mexico law requires knowing, informed consent to waive rights that would otherwise exist under the law, such as disclosure to all assets in the event of waiver of rights of spousal support.
Parentage issues, generally
Where parties to a relationship have children, separation or divorce is necessarily complicated, even (and perhaps especially) if the parties are not married. Both parents share the duties and responsibilities to provide for the material, physical, medical, educational and emotional needs of their children.
New Mexico indulges in a presumption that parentage is established by the father's being names on the birth certificate. In any event however, the parties may request or submit to a DNA test, to establish parentage.
Once parentage is established, by admission, testing or other evidence, the parties or court must determine (a) child custody and (b) child support. If the court determines these issues, it will be based on the best interests of the child, although the court may also take into consideration the stated wishes of children over the age of 14 years old.
Custody
The term "custody" incorporates the concepts of both "legal custody" or decision making regarding significant matters affecting the child, and "physical custody" or time sharing. New Mexico law presumes it is always in the best interests of the child that both parents have joint legal and physical custody. This means each parent must always consult the other regarding serious matters affecting the child such as education, health care, and religion.
As a matter of practical application, however, it may be in the best interest of the child that the principle of equal time share give way to school, work and other schedules. In that event the court or a mediator may accommodate the parent with less weekly time by increasing his or her time share during holidays, weekends, and/or during the summer.
Child support
Child support may be obtained through the courts or through the Child Support Enforcement Division of the Human Services Department. If the custodial parent is receiving any public assistance, such as food stamps, medicaid or TANF benefits (Temporary Assistance to Needy Families)
New Mexico courts and mediators utilize a "child support calculator." See
http://www.alllaw.com/calculators/childsupport/new_mexico/. Generally, this calculator considers each parent's income, the amount of time each parent has physical custody of the child and additional expense. Then, the calculator determines how much support the child is entitled to, and apportions that sum between the two parents according to their respective means.
If one or both parents are un- or under-employed, the courts and/or Child Support Enforcement Division may well likely impute a minimum annual income based on a forty hour work week at the relevant statutory minimum wage.
If the one or both parties wish to vary from the amount determined by the calculator, he and/or she must state "good cause" for such variance. In practice, the results of a request for variance, and even initial adherence to the calculator's apportionment, can vary quite a bit from judge to judge. Some will recognize the calculator's determination is exorbitant, and decline to follow it sua sponte. Others will follow it unless good cause to vary is show.
It should be emphasized that child support is independent from physical custody to the extent that the parents cannot unilaterally withhold child support because of dissatisfaction with, or even the other parent's violation of, the time sharing provisions.
Mediation and Arbitration
New Mexico courts regularly use mediation in domestic relations matters. The Thirteenth Judicial District, in particular, utilizes court-funded mediation in its pro se domestic matters--I am a member of their domestic mediation panel, as well as their foreclosure and civil mediation panels.
New Mexico Court Rules also permit the arbitration of domestic matters, but that provision is not frequently used according to the Second Judicial District ADR Director, David Levin.
If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
