Contested Divorce 101: What You Need To Know About New Mexico Divorce
The decision to get a divorce is never easy. Aside from the personal and emotional fallout from ending your relationship, couples have to deal with the actual logistics of splitting their lives and ending their marriage. In New Mexico, this can generally be done in two ways: Uncontested Divorce and Contested Divorce. Despite what the names might suggest, the two types of divorce have less to do with your desire to have an easy divorce and more to do with the circumstances of your marriage.
Uncontested vs. Contested Divorce, Which is Right For You?
While contested divorce may sound much more ominous than an uncontested divorce, in reality, a contested divorce is the most common type of divorce and is what people usually think of when they think about divorce. An uncontested divorce is an option when both parties agree on absolutely EVERYTHING regarding dividing property, assets, debts, child custody, child support, and spousal support. Couples must factor in complex issues that need to be addressed, like identifying and dividing community property and community debt (including retirement accounts and retirement benefits), disposition of the marital residence, spousal support/alimony, custody/timesharing of minor children, relocation, child support and any other particular issues unique to your family and circumstances. As you might imagine, few divorcing couples can come to such a broad agreement by themselves. That’s why most divorces are contested. This means that the parties are not in full agreement as to the terms of the divorce and the issues in contention need to be either litigated or negotiated.
Generally speaking, an uncontested divorce is best for couples who have not been married for a long time, have minimal assets and debts together, who have no kids and are in a position to communicate. While you can still have an uncontested divorce even if you have kids and assets together, but you would need to be in full agreement on everything that entails. On the other hand, If you have been married for a longer amount of time (usually 4 years or more), and have children assets, debts, retirement accounts, and property together, you will probably need to have a contested divorce so all aspects get addressed and your assets and liabilities are divided equally. A contested divorce is also a great tool for getting a full and honest accounting of each party’s income, assets, and debts through a process of discovery.
How Does A Contested Divorce Work?
The first step in the divorce process is filing a Petition for Divorce with the relevant family court. A Petition for Divorce is the document that tells the courts you are seeking a divorce and the grounds for the divorce. Contrary to popular belief, the reasons for seeking a divorce are usually not relevant so stating the grounds for divorce is more of a formality. This is more of an opportunity for you to express what you want out of the divorce. The initial petition often demands much more than the Petitioner expects. If you’ve been served divorce papers, Don’t worry if your soon-to-be-ex claims that they cannot support themselves and therefore wants spousal support or for you to pay all attorney fees. Attorneys often use the initial petition as a wish list. Once you retain an attorney, this will be the first document they draft and file with the court. As soon as the filing is accepted, you are required to serve the opposing party with a copy of the petition and a summons. How you serve the opposing party is usually determined by the level of communication you have with them. If you have been in contact with them regarding your intentions to file, mailing or personally giving them the documents may be sufficient. If they are uncooperative or you are unable to communicate with them, you will probably have to have a sheriff or process server serve them. Once they are served, they have Thirty (30) days to respond to the petition. At this point, they will likely retain their own attorney who will draft a response to your petition that contains the other party’s position and either admits or denies the claims made in your petition. This starts a period of discovery and negotiation.
What Is Divorce Discovery?
The discovery process involves collecting all the documents and records regarding the party’s community property, debt and income. This includes all real property and financial assets such as investments and retirement accounts. The discovery process also includes interrogatories (questions) and documentation related to the custody of the children. The discovery process can be a lengthy process if the parties do not cooperate. Despite the fact that the discovery requests themselves are pretty standard and accepted by the Courts, this can be the most time-consuming and expensive part of divorce litigation.
Unfortunately, some parties or their attorneys simply do not abide by the rules of discovery. This can require the filing of Motions to Compel the production of discovery.Upon the filing of a Motion to Compel, the Court will set a hearing. The party that files the Motion will present to the court the items that have been legally requested and denied. If the Court finds that the opposing party has not complied with discovery, the Court can order that the discovery be provided in full. The Court can also award attorney fees and costs. Unfortunately, despite obvious violations of the rules of discovery, and even Court findings of violations of the rules of discovery and the Court’s own orders, judges often refuse to award attorney fees. This refusal sometimes leads to further abuses, and subsequent motions in what can be become a long, frustrating, and expensive cycle of violations of the rules of discovery, the rules of procedure, and even the Court’s own orders.
Discovery can be a very important part of your case, but you should approach this process with caution. In many cases, divorce attorneys simply send a blanket request for information and documents, often asking for things that you can obtain on your own, or information that is not relevant to your case. You should always have a conversation with your attorney about what information you actually need in your case before discovery is requested. Large discovery requests can be costly because your attorney and/or her staff will need to review all of the information that is provided.
The Marital Settlement Agreement
The real meat of your divorce will be your Marital Settlement Agreement (MSA). This is the document that contains the terms of the divorce, the specifics of how property and debts are divided, and if necessary, a parenting plan that outlines custody and child support. As you can imagine, this is were most conflicts and disagreements in the divorce proceedings occur. Once discovery has been exchanged, a period of negotiations will take place where both sides will exchange offers and counteroffers in an attempt to come to agreements on all outstanding issues. Remember, New Mexico Law aims to divide all assets and liabilities equally, so keeping assets like the marital home usually means absorbing a corresponding debt. This phase also involves the identification and valuation of community property and separate property.
If you and your soon-to-be-ex can come to an agreement here, one of your attorneys will draft the MSA reflecting your agreements and then you can immediately draft and sign the Final Decree, which formalizes the Divorce. However, in the very likely event, you and your spouse do not come to an agreement on absolutely everything, the court will likely order you to proceed to mediation.
Settlement Facilitation In New Mexico
In New Mexico, mediation is known as settlement facilitation. Settlement facilitation is a very common feature of many New Mexico divorces and is often a helpful tool in resolving points of contention. Settlement facilitation is typically very beneficial to the parties in a divorce. If at all possible, the parties are well-advised to go to settlement facilitation as quickly as possible in the divorce process. Early settlement can avoid potentially costly, stressful and protracted litigation. In fact, most family law courts require an attempt at settlement facilitation prior to a trial of the case. The process is pretty straightforward. The parties must agree upon a facilitator who acts as a neutral mediator. In the absence of an agreement, the court will appoint one. As a preliminary matter, effective settlement facilitation can save the parties a lot of money in attorney‘s fees and their own time. Each issue that is settled by the parties without their attorneys having to file motions and attend hearings to argue the disputed issue can save hundreds or even thousands of dollars. Further, settlement facilitation can often be held, and a settlement reached, much more quickly than court action because the facilitation can be scheduled at the convenience of the parties, rather than the Court whose docket is often crowded. In very busy judicial districts, parties can wait months to have a hearing before a judge when facilitation can be scheduled as soon as all of the parties, their attorneys and the facilitator are available. The effectiveness of settlement facilitation depends heavily on how willing the parties are to negotiate. Parties need to realize the cost of full litigation when they are evaluating whether or not they want to wait for a judge to decide an issue or try to resolve it through settlement. There is a great deal of preparation needed for successful settlement facilitation. The facilitation itself usually lasts 4 to 8 hours depending on the complexity of the case. Failure to prepare or to select a qualified facilitator can result in lengthening the time needed and often will cause the facilitation to fail. Though the parties do not need representation at settlement facilitation, in cases with significant issues, each should seek the assistance of a New Mexico Divorce Attorney. Failure to fully understand and prepare for the process would set the parties back significantly in terms of time and expense. Worst case, the parties can enter the facilitation in the spirit of cooperation and leave with a high conflict divorce on their hands.
Usually, settlement facilitation is very effective at forming agreements so failure is relatively rare. However, in the event that you cannot come to an agreement during your facilitation, the case will likely go to trial and the courts will decide any outstanding issues.
The final step in the divorce process is drafting and filing the Final Decree. This document adopts the agreed-upon MSA and formally finalizes your divorce. Once this document is accepted by the court, you are officially divorced. The only remaining issues at this point could be drafting Qualified Domestic Relations Orders (QDRO’s), which divide retirement accounts, and name changes (although, if that’s something you want, you can change your name in the Final Decree).
Do I Need A Lawyer For My Divorce?
There may be situations where a lawyer may not be needed for your divorce. If you and your spouse have minimal assets, haven’t been married long, and have no children, this could potentially be an option. However, most couples do have both separate and joint assets and children are often present. In these situations, it’s in your own best interest to know what your rights are and what options you have. There are many complex issues that need to be resolved in a divorce, including establishing each party’s actual assets, debts, and income, determining community and separate property, dividing retirement and savings accounts, the degree of ownership of the marital home, child, spousal and interim support to just a few.
If your considering divorce or you have been served divorce paper, contact Genus Law through our online chat or call us at (505)-317-4455 to set up your free consultation with one of our experienced Albuquerque Divorce Attorneys. We can discuss your case, your concerns, and your options to make sure you get the best possible outcome.