ASPECTS OF DIVORCE CASES
Not all divorces take the same path
SPOUSAL SUPPORT MODIFICATION
In New Mexico, either spouse may request spousal support modification unless the final divorce agreement prohibits modifications. If you are a former spouse requesting more support or a spouse who wishes to lower the amount paid, you will have to show the court that circumstances have changed.
SPOUSAL SUPPORT GUIDELINES IN NEW MEXICO
Understanding spousal support guidelines and how they pertain to your case usually requires help from a divorce attorney. If you wish to increase the spousal support amount you are currently receiving, you will need an attorney to prove that you are in financial need. If you are seeking to decrease payments, you must demonstrate that your former spouse is no longer in need of these payments or that you no longer have an ability to pay the court-ordered amount of support. Spousal support laws allow judges to consider factors like:
- Job loss
- Demotion or pay cut
- Cost of living
For those seeking to decrease alimony payments, you must demonstrate that the request is in good faith and not an attempt to limit alimony. If you are seeking increased spousal support, you must prove you are not receiving sufficient money to live, despite your good faith efforts to become self-supporting. Courts consider the parties’ historical standard of living during the marriage when considering spousal support modification, but this is not the primary consideration for an appropriate amount of support.
The divorce attorneys at Terry & deGraauw, P.C. possess an in-depth knowledge of New Mexico statutory and case law as it relates to divorce and alimony. They provide the experienced counsel and tough negotiation necessary to fight for just alimony payments, and they have a wide professional network to refer you to the right financial experts you may need to investigate your former spouse’s income.
Marriage is a financial partnership as much as it is an emotional one. In many partnerships, one partner receives a higher income and/or has higher earning potential than the other. In order to prevent the lower income earning spouse from bearing an undue financial burden as a result of the divorce, New Mexico family courts recognize the need for alimony (also called spousal support).
A multidisciplinary committee has outlined guidelines for calculating alimony to assist divorce attorneys in assessing if their clients are eligible to receive spousal support and to establish an estimated monthly amount to begin negotiations.
- For parties with no children:
30% of the higher income-earning party’s gross monthly income less 50% of the lower income-earning party’s gross monthly income
- For parties with children:
28% of the higher income-earning party’s gross monthly income less 58% of the lower income-earning party’s gross monthly income
In New Mexico, the burden is on the spouse seeking the support to show why he or she needs spousal support. The actual amount and duration of alimony payments are determined by the court, which considers a number of other factors, such as:
- Length of the marriage
- Age, health and means of financial support for each party
- Current and future earnings and earning capacity of each party
- Efforts to find and/or maintain employment
- Standard of living during the marriage
In New Mexico, courts may award one of three types of alimony, depending on the circumstances:
Transitional spousal support — spousal support to supplement the income of the receiving spouse for a limited period of time after the divorce.
Rehabilitative spousal support — spousal support to assist the recipient spouse while that spouse follows a rehabilitative plan with the goal of becoming self-supporting in the future.
Indefinite spousal support — spousal support to be paid for an indefinite time, the amount of which can be modified at a later date.
Lump-sum spousal support — to be paid in one or more installments that specifies definite amounts.
Alimony payments are calculated before child support payments because alimony received or paid is factored into parties’ respective gross incomes when calculating child support.
WHY YOU NEED AN EXPERIENCED ATTORNEY
Assessing a just alimony amount requires full disclosure of divorcing parties’ assets and debts; getting the court to award alimony for divorce cases that go to trial can require expert testimony. Because alimony can be a highly contentious issue, income may often be hidden to reduce the amount of spousal support awarded. An experienced divorce attorney is invaluable to the investigation of your former spouse’s financial affairs and in building a solid case for the amount and duration of alimony sought.
HIGH ASSET DIVORCE PROTECTION
Terry & deGraauw, P.C., provides sophisticated legal representation designed to protect your long-term interests. Divorce involves financial challenges that you should not face alone. If you are entering a high asset divorce in New Mexico, you need legal counsel to ensure that all matters pertaining to your divorce are addressed appropriately.
If your marital estate is large or complex, it is important to work with a divorce law firm that has the resources needed to protect your interests before, during and after your divorce. When you work with our divorce attorneys, we ensure that all elements of your estate are properly identified, categorized and valued.
RESOLVING COMPLEX DIVORCE DISPUTES
Our lawyers use accountants, economists, appraisers and other experts to determine current and future value of your complex assets and debts. In the division of high asset estates and investments, proper valuation is critical. When you work with lawyers of our experience, you can you be assured that your business shares, retirement accounts and real estate holdings are accurately valued.
Our attorneys have significant property division experience dealing with retirement investment accounts, securities, pensions, IRAs, 401(k)’s and other retirement benefits. We commonly represent business owners in cases that require business and stock valuations. We also work with high income clients who depend on us to analyze their bonus and commission income accounts when it comes to issues of spousal support and premarital agreements.
MILITARY DIVORCE REPRESENTATION
The military divorce lawyers at Terry & deGraauw, P.C., are committed to helping active duty military and retired military members achieve a satisfactory divorce in New Mexico. We have extensive experience handling military divorce cases and will work diligently to address all of the special concerns that you face as a member of the military.
SPECIAL CONSIDERATIONS IN MILITARY DIVORCE CASES
Military divorce proceedings occur in state civil courts, not military courts. However, members of the military face special considerations. For that reason, you need a divorce attorney familiar with military divorce proceedings in New Mexico. At Terry & deGraauw, P.C., we work with military members who are located in New Mexico, as well as out of state and overseas. We are seasoned attorneys who have encountered a wide range of legal issues that arise in military divorces:
- Child custody issues can be even more difficult to resolve in military divorce cases. Military parents often require relocation that could affect child custody and visitation rights. This needs to be considered when you and your former spouse work out the terms of your divorce.
- Property division is another complex issue in military divorce. Military retirement plans are often valuable assets that could be divided between you and your former spouse. Your other military benefits that appear on your Leave and Earnings Statement may also affect the outcome of your divorce.
The division of your military benefits may have a major impact on property division, spousal support and child support arrangements. Even if your divorce is uncontested, you still need an experienced New Mexico military divorce attorney at your side to protect your family and your assets.
DIVORCE AND ACTIVE DUTY MILITARY PERSONNEL
According to the Service member’s Civil Relief Act, any action against you in family court, including divorce, can by stayed for an initial period of 90 days. You may have the possibility of extending the stay, depending on your deployment status. Our divorce attorneys can help you understand the best way to handle a divorce petition while you are on active duty.
Active duty may affect your child support obligations. You may have returned home after a long deployment to find you are in arrears of child support that must be paid. As military divorce lawyers, we can review your Leave and Earnings Statement to help you understand how child support will be calculated in your case.
DIVORCE AND RETIRED MILITARY PERSONNEL
Whatever you accrued in your military pension during the marriage is considered part of your marital estate and will be divided equitably upon divorce in New Mexico. If the marriage and your military service overlapped for more than 10 years, your nonmilitary spouse’s share of the pension may be paid directly by the government to the former spouse under the Former Spouses’ Protection Act (FSPA).
UNIFORMED SERVICES FORMER SPOUSE PROTECTION ACT (USFSPA)
The USFSPA defers to state divorce laws. New Mexico is a community property state, meaning that a couple’s assets accrued during the marriage are split equitably upon divorce. That means a civilian spouse is entitled to an equitable share of a service member’s pension and retirement benefits.
MILITARY SPOUSE BENEFITS
Generally, the longer you were married, the greater your military spouse benefits. Marriages under 20 years yield few additional military spouse benefits, but those that lasted more than 20 years yield more. The 20-20-20 rule provides benefits like PX and commissary rights, medical benefits and cost-of-living adjustments.
MILITARY BENEFITS AFTER DIVORCE
Understanding military marriage benefits & divorce is confusing, but the attorneys at Terry & deGraauw, P.C., can help you learn your rights and strategic options. Whether you are an active duty service member, retired service member or spouse of a service member, our divorce attorneys can advise you on all of the legal considerations under federal and state law.
FILING FOR A NO-FAULT DIVORCE
New Mexico divorce laws make filing for divorce a much simpler process than it was in the past. All 50 states in the U.S.A. recognize “no-fault” divorce laws that allow courts to grant divorces without needing the couple to prove any wrongdoing. If you wish to dissolve your marriage in New Mexico, it will be dissolved.
NEW MEXICO NO-FAULT DIVORCE LAW
In the past, you would have had to prove adultery, abandonment or cruel treatment in order to obtain a divorce. These wrongdoings are tricky to prove and greatly slowed down the divorce process. Today, New Mexico no-fault divorce laws allow you to divorce without the need to prove fault. In fact, most couples simply cite “irreconcilable differences” on divorce petitions.
STEPS TO FILING FOR DIVORCE IN NEW MEXICO
No-fault divorce law greatly speeds up the divorce process, but with one caveat: before a judge will grant your divorce, you must have all alimony and child custody arrangements decided first. To do this, you will need to work out an agreement through Collaborative divorce, mediation or arbitration. Otherwise, your divorce will need to be litigated in court.
Which type of divorce you choose depends on the unique circumstances of your case. If you and your spouse agree on alimony, child support, and custody, you are likely headed for a relatively straightforward uncontested divorce. Most often, couples do not agree on the terms of divorce right away and choose to resolve their differences through mediation.
When a couple cannot come to terms in mediation, they usually have two options: arbitration or litigation. In arbitration, you and your spouse will agree on an arbitrator who will hear evidence from both sides and come up with a binding decision. At Terry & deGraauw, P.C., we use divorce litigation as a last resort since most couples wish to save the time and expense of drawn-out courtroom battles.
DIVORCE PROPERTY DIVISION IN NEW MEXICO
New Mexico is a community property state, meaning that assets and debts accrued in a marriage are split equally in the event of a divorce. Most simply, marital assets are things acquired during your marriage, from the day of your nuptials until your final divorce agreement. It sounds simple, but dividing marital assets quickly becomes complex as tax issues arise and couples realize that marital property law categorizes retirement pensions as shared assets.
Our attorneys will assist you in identifying, classifying and valuing all of your marital assets and debts to help you reach an equitable resolution:
- Identification: Our attorneys help you make a list of each asset and debt that you and your spouse have regardless as to whose name is on the asset (such as real property) or debt (such as a loan).
- Classification: We will distinguish marital property accrued during the marriage from separate property acquired before the marriage or received as a gift or inheritance.
- Evaluation: We work with financial professionals to determine the monetary value of your property. You will create a list of assets and debts you would assume in an ideal divorce settlement.
- Tax Implication: Our professionals will help you consider how receiving each asset and assuming each debt on your list would impact your tax liability and can work hand-in-hand with tax experts to create a tax savings plan.
DIVISION OF ASSETS
Our attorneys prepare you for life after divorce by protecting your financial interests and with the goal of helping you plan for your future. We are experienced in working with high-asset divorces in New Mexico and understand the complexities and nuances these cases bring. The types of marital property divided in New Mexico include:
- Equity in a home
- Pension funds
- Retirement savings
- Stock portfolios
DIVISION OF DEBT
When speaking about property division and divorce, most couples consider the division of assets like the marital home before they consider the division of debt. When protecting your assets in divorce, it’s important to remember that New Mexico is a community property state, so everything accrued during the marriage is subject to division — and that includes debt.
When you file for divorce, you will be required to fill out a Schedule of Assets and Debts. You and your spouse will exchange this form and disclose all assets and debts. You will list all of your separate property (anything you brought into the marriage), as well as your marital property (such as a house you bought together).
Debt accrued before the marriage will not be divided upon divorce. However, debts accrued during the marriage will be divided equitably. Filling out a Schedule of Assets and Debts will help you understand whether you and your former spouse can agree on how to pay off marital debt. If you can agree, you are more likely to have an amicable divorce settled outside of court. However, some couples find that they cannot agree and are forced to pursue their divorce through litigation.
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