Supplement toFamily Law
in New Mexico
by Barbara Shapiro
Supplement to
The 2003 Supplement to Family Law in New Mexico includes:
To obtain the 8-page 2003 Family Law Supplement, send $2.00 AND a self-addressed, stamped envelope to: Abogada Press, P.O. Box 36011, Albuquerque, NM 87176-6011. For more information, contact Abogada Press, 505-268-3318, or e-mail us at abogada@aol.com.
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2003 SUPPLEMENT to FAMILY LAW IN NEW MEXICO
by Barbara L. Shapiro, © 2003 by Barbara L. Shapiro, All Rights Reserved
Family Law in New Mexico , published in 1998, discussed New Mexico family law, taking into account the major statutes, cases, and rules through 1997. This supplement updates the book by noting changes in statutes, cases, and rules through December 2001. Remember that changes after that date, which are not anticipated or discussed here, may affect the future content of this book. Consult a knowledgeable attorney regarding future changes in the law. (As used in this Supplement, “NMSA” means New Mexico Statutes Annotated.)
page 9, lines 1-6. In 2001, the New Mexico legislature repealed the criminal statute against cohabitation found at NMSA Section 30-10-2. This repeal may affect how the courts will decide certain claims when cohabitation relationships break up. However, to date no court decisions on these issues exist to give any guidance about the nature or extent of those changes, if any.
page 14, line 22. The normal retirement age that entitles people to apply for full social security benefits has increased. There is a graduated phase-in schedule of the increase ending with people born in 1960, whose normal retirement age is now 67. Early retirement benefits that may still be applied for at age 62 are calculated by reducing the normal retirement benefit by a certain percentage for each month between age 62 and the normal retirement age. Contact the Social Security Administration for more details.
page 20, lines 24-30. In 1999, the United States Internal Revenue Service put into effect new “innocent spouse” rules that expand the rights of spouses to limit their tax liability on a joint federal income tax return. These rules are complex and there are pros and cons to consider in deciding whether to claim the status. You need the advice of an expert to make that decision, so consult a tax expert if you have a problem with prior joint tax returns filed by you and a spouse.
page 22, lines 28-31. A recent United States Supreme Court case involving grandparents' visitation rights has reinforced the concept of the fundamental rights of parents to raise their children free from outside interference. See the Supplement, page 89 below, for more information.
page 23, lines 11-21. In 2001, the New Mexico Legislature modified laws regarding claims for back child support in paternity suits. In revised NMSA Section 40 –11-15, courts that decide how long and whether to award child support retroactive to a child's birth may consider whether the alleged or presumed father has absconded or cannot be located and other equitable defenses. These criteria might work for or against retroactive support. Also, if a child is determined to be a “child of the marriage” in a divorce or support case, and the court had personal jurisdiction over both parents, the child is bound by that determination and probably cannot bring a separate paternity suit to either claim another father or claim support from another father.
page 29, lines 22-26. In 2001, the New Mexico Legislature enacted a Revised Interstate Custody Jurisdiction Act that may affect how courts decide jurisdiction over children when the parents live in different states. Interstate Custody Jurisdiction is a very complex topic. You should consult an attorney (1) if the children have moved into New Mexico with you recently, one parent does not reside in New Mexico, and you want to file for divorce or legal separation in New Mexico, or (2) if there is another divorce or separation case filed out of state, there are children involved, and you live here.
page 35, lines 18-34. In 2001, the New Mexico Supreme Court adopted permanent, new Domestic Relations Rules and some forms that apply to all court districts in the state. The new Domestic Relations Rules require that mediation be deemed confidential. See Rule 1-125. This confidentiality can be waived by written agreement. In some districts, parties waive confidentiality when there is an advisory consultation or evaluation of custody with the same person or agency doing the mediation. This is so that information gained in mediation can be used in the other task.
page 36, lines 4-23. In 1999, the New Mexico Legislature enacted a Domestic Relations Arbitration Act found at NMSA Section 40-4-7.2 of the statutes. This law provides that all issues in a divorce or legal separation case, or tort issues related to these cases, may be arbitrated. Criminal matters or cases involving domestic violence cannot be arbitrated. Arbitration can only occur if the people involved sign a written arbitration agreement—courts cannot order arbitration on their own. Selecting an arbitrator, raising objections, participating in a hearing, and appealing from a decision require a good knowledge of the rules. You need legal help to agree to arbitration and to go through the process.
page 38, lines 25-26. In 2001, the New Mexico Legislature increased the filing fees for domestic relations cases. Most domestic relations filing fees are now $137. There may be an additional surcharge to help fund a court-connected, supervised visitation program.
page 39, lines 19-end of page. See the new statewide Domestic Relations Rules 1-120 to -127 and Forms 4A-111 to -113, 4A-121 to -123, 4A-131 and -132. All cases now require a Temporary Domestic Order (TDO) to be issued in the form mandated by the Supreme Court. See Form 4A-112, included at the end of this Supplement. The TDO now becomes effective on the party who is served with it two days after service. The new forms are available on the Supreme Court website; search “Legal Forms, Domestic Relations Forms” and then “Domestic Relations Forms, Rules.”
page 40, lines 14-28. The new statewide Domestic Relations Rules divide income and debts while a case is pending as explained in the original text of this book. Only community income and debts are normally divided; however, a motion can be filed to share separate property income or to provide for the payment of separate debts. Motions to allocate income and debts must use the forms provided by the Supreme Court. See Forms 4A-121 to -123 and Rule 1-122.
page 41, lines 32-34. The new statewide TDO gives each party the right to examine the contents of the marital residence within 15 days of the date of a request to inspect them. See Form 4A-112 below.
page 42, lines 32-end of page. The form of affidavit setting forth the property, debts, and income before a trial is now governed by the Supreme Court Domestic Relations Rules and Forms . See Rule 1-123 and Forms 4A-131 and -132. The forms must be exchanged at least 5 days before a trial and delivered to the assigned judge at least one day before a trial. They are not filed with the court.
page 44, lines 4-19. The importance of changing beneficiaries on life insurance is discussed in detail in this Supplement, page 65 below.
page 46, lines 29-end. The old statewide Lawyer Referral Service has been closed. The new agency providing referrals to reduced-fee services is Lawyers Care Referral Program at 797-6066 (Albuquerque) or 1-800-876-6227.
page 47, lines 3-35. Applications to recover or pay fees made to a court after a hearing are now governed by the statewide Domestic Relations Rule 1-127. The attorney must submit a statement of itemized fees that are sworn to as necessary. The court at a hearing to determine whether to award fees considers relevant factors, including but not limited to, the disparity of each person's resources including assets and income, prior settlement offers, the total fees expended by each party, the amount of fees paid from community funds, any interim advance of funds ordered by the court, and success on the merits at the trial.
page 65, lines 29-end. A United States Supreme Court case decided in 2001 named Egelhoff v. Egelhoff, 532 U.S. 141 (2001) shows the importance of making sure beneficiaries on ERISA life insurance policies are changed after a divorce. A failure to do it meant the proceeds had to be paid to the old beneficiary (the ex-spouse) despite what the divorce decree said or state law required. What the policy said was the critical thing. However, there could still be claims under the divorce decree to recover the policy proceeds from the ex-spouse who received them.
page 74, lines 11-16. The new statewide rule regarding mediation illustrates how preferred this process is in cases involving custody of minor children. See Rule 1-125.
page 77, lines 5-19. In 1999, the New Mexico Legislature added the new factor of domestic violence to the court's consideration of whether joint custody should be awarded to a parent. If there was an actual trial on domestic violence and a ruling that one parent was violent, this must be considered in deciding whether to award joint custody to that parent. Any final custody order must be examined when this issue arises to determine if it provides adequate protection for the child or any abused household member.
page 78, lines 19-end. The submission of a parenting plan by the parents, or an evaluator, or as determined by the court is now required in every case involving custody. See Rule 1-124A.
page 85, last line. A recent New Mexico case titled Thomas v. Thomas , 1999-NMCA-135, 128 N.M. 177 (Ct.App. 2001) held that the inability to cooperate between parents is a sufficient legal ground to prove the change in circumstances necessary to modify custody.
page 89, lines 9-end. The United States Supreme Court decided an important case involving grandparents' visitation rights called Troxel vs. Granville , 530 U.S. 57 (2000). The Supreme Court decided that a Washington law that allowed grandparents to have visitation rights whenever it was found to be in the best interests of the child was unconstitutional under the facts of the case. In that case, one parent had died and the children had been adopted by a stepparent.
The trial court had awarded visitation to the children's grandparents (of the dead parent) over the two living parents' objections. The Supreme Court held that under these facts, the decision of the trial court was unconstitutional because it invaded the living parents' fundamental right to raise their children without interference. It is not clear how this important decision will affect the validity of the New Mexico grandparents' visitation laws. It is important to know that no third party, grandparents included, can claim custody of a child in New Mexico when a biological parent is alive, without showing that that parent is unfit.
page 90, lines 6-22. The 2001 New Mexico Legislature amended the Parentage Act to make it clear that when a divorce or support case determines that a child is “the child of the marriage” or a child of the specific parents, the child cannot later attack this finding of paternity in a new lawsuit. See the discussion at Supplement, page 23 above.
page 107, lines 23-25. In 1999, amendments to New Mexico's law set the interest rate on late child support payments as the interest rate on judgments existing at the time of the late payment. However, if a person goes to court and obtains a judgment for what is owed as a lump sum, the rate to apply is the rate of interest on judgments at the time the judgment is entered by the court.
page 118-119, Tax Exemptions. Note that continuing changes in the tax laws have increased the amount of the tax exemption for minor children and lowered the tax rates. To calculate the advantage of getting the tax exemption for a child, use the new exemption amount and tax rates.
page 137, lines 10-11. The premiums for coverage under CHIP have increased. In 2001, for a 39-year-old woman with $1000 deductible and maternity coverage, premiums were $450 a month; without maternity coverage they were $298 a month. For a 50-year-old woman without maternity coverage, premiums were $457 a month. Call Blue Cross-Blue Shield to determine your choice of coverage if you are uninsurable and need coverage from CHIP.
page 153, lines 2-5. In 1999, the New Mexico legislature enacted new procedures for issuing emergency temporary domestic violence orders when the courts are closed. Orders can now be issued after hours and on weekends based on the signed affidavit of a policeman and a faxed order from a judge. Prompt hearings are necessary as soon as the courts are open. In 2001, the legislature enacted a law to allow courts to award financial remedies for victims of domestic violence including, among other items, reimbursements for expenses, replacement of damaged property, and lost wages caused by the violence.
page 155-156, last paragraph to end of text. Most district courts now have available “ pro se ” forms for people who are representing themselves without an attorney to use in domestic relations divorce cases. Some of these forms are also available on the Supreme Court website. See address at Supplement, page 39 above. Most courts have programs that offer help to pro se litigants to understand and fill out these forms. The forms usually apply to simple cases involving modest property and no children. For complex issues, the forms advise you to see an attorney.
page 157, Appendix to Chapter 2, Form 1—Temporary Domestic Order. All courts must now use Form 4A-112 issued by the New Mexico Supreme Court. The new form is set forth below. Please consult Rule 1-121 as well.
4A-112
[1-121]
STATE OF NEW MEXICO
____________________ COUNTY
_____________________ JUDICIAL DISTRICT
_________________________________________,
Petitioner,
v.
No. ______________
_________________________________________,
Respondent.
TEMPORARY DOMESTIC ORDER 1
This order is issued pursuant to Rule 1-121 NMRA. This is not an order of protection under federal or state law. It is otherwise fully enforceable. It applies to both parties. This order will continue in effect until modified. The procedure for modification of this order is described below.
THE COURT ORDERS THE PARTIES AS FOLLOWS:
(1) Do not injure or physically or mentally abuse, molest, intimidate, threaten or harass the other party or any child of either party.
(2) Do not interfere with the relationship of your spouse with any child of either party. If you are living apart, you shall each continue to have frequent contact and communication with any minor child of both parties, personally and by telephone. A party shall notify the other party of any change of address or telephone number within twenty-four (24) hours of the change.
(3) Do not change a child's school, religion, child care, doctor, dentist, physical or mental treatment or recreational activities in which the child has been participating.
(4) Do not remove, cause or permit the removal of any minor child of both parties from the State of New Mexico without court order or written consent of the other party.
(5) Do not make the other party leave the family home, whether it be
community or separate property, without court order. You should attempt to resolve the question of who leaves the home in a fair manner. If you cannot agree, you must ask the court to decide.
(a) Whoever moves from the family home may return to pick up personal belongings at a reasonable time as you may agree. Personal belongings do not include furniture unless you agree or the court permits. If an order prohibiting domestic violence has been entered, you must arrange to have a law enforcement officer present to monitor the removal of personal belongings. The party moving out of the residence is not prejudiced by reason of the move in any way with respect to custody of any minor child, with respect to a claim of any interest in the family residence or the personal property in or on the premises.
(b) Whoever leaves the family residence shall notify the other party, within twenty-four (24) hours of an address where the vacating party can receive mail.
(c) At a reasonable time, you are entitled to examine the contents of the marital residence and to have access to all properties owned by either of you, for inspection, valuation or appraisal. If you ask, the other party must provide access to the home within fifteen (15) days after the date of the request.
(6) Do not incur unreasonable or unnecessary debts. Any debt that does not contribute to the benefit of both spouses or the minor children of the parties which is incurred after you have separated, may be the separate debt of the party who incurs the debt.
(7) Do not sell, remove, transfer, dispose of, hide, encumber or damage any property, real or personal, community or separate, except in the usual course of business or for the necessities of life. Keep an accounting of any transactions to show to the court.
(8) Do not drop or cancel any insurance policy, including automobile or other vehicle insurance, household insurance, medical or dental insurance or life insurance.
(9) Do not terminate or change the beneficiaries of any existing life insurance policy.
(10) Do not close any financial institution account 2 or cancel any credit cards nor remove the other party from any credit card account during pendency of this case, unless the parties otherwise agree in writing.
MODIFICATION BY COURT 3
This order may be modified by the court upon request of either party. To request the court to modify this order, a motion must be filed with the clerk of the court. The motion must include reference to each paragraph number the party is requesting to be modified or terminated. The party making the request must provide the other party with a copy of the motion requesting the change. If the other party agrees with the request, an order approving the request, which has been initialed by both parties as "approved", shall be filed with the motion.
WAIVER BY PARTIES
The parties may modify a specific provision of this order by entering into a written agreement and filing it with the court. The parties may also waive a provision of this order on a specific occasion if both parties sign an agreement to waive the provision. A waiver must include the paragraph number of each paragraph waived by the parties.
OTHER ORDERS
If an order of protection from a domestic violence case has been served on either party or if there is any other order in effect governing the relationship of the parties, and there is a conflict between this order and the other order, the other order controls unless the court specifically orders otherwise.
VIOLATIONS
Violation of this court order may result in the imposition of a fine or imprisonment. This order is binding on the petitioner at the time the petition is filed. This order is effective on the respondent two (2) days after it is served on the respondent. The parties are cautioned that actions taken by either party that are contrary to the terms of this order are subject to redress by the court including costs and attorney fees.
____________________ ______________________________
Date District Judge
USE NOTES
1. A scheduling order may be issued at the time a domestic relations case is docketed and served with the petition, however, the scheduling order must be issued as a separate order.
2. See Section 58-1-7 NMSA 1978 for notice to any bank of an adverse claim to a bank account.
3. Within two (2) days after service of this order, a party may file a motion requesting a hearing to dissolve this order. If the court finds the motion was frivolous or was not filed in good faith it may assess the party filing the motion with costs and attorney fees.
[Approved, effective November 1, 2000 until November 1, 2001; approved permanently, effective November 1, 2001.]
COMMITTEE COMMENTARY
This form deviates from the forms used by some judicial districts, however, the changes are necessary to comply with due process requirements. See Rules 1-121 and 1-066(B) NMRA.
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Please let Abogada Press, PO Box 36011, Albuquerque NM 87176-6011 (or e-mail abogada@aol.com ) know about other additions, corrections, or updates for us to consider. Thank you.
Copyright © 2004 by Abogada Press
revised
6/30/05