The Family Law Firm Blog

Matthew Legan Sanchez tagging in to write about the big week for family law issues in Hollywood. I’m sure that anyone stumbling onto this blog has spent the free hours of this week on edge, glued to the television while alternating between the late breaking news of Kim Kardashian’s failed marriage, and a paternity suit alleging that Justin Bieber is the father of a bouncing baby boy. With the weekend quickly coming into focus you are undoubtedly searching for someone with a legal turn of mind to cast an inquisitive eye on the legal implications of Kardashian and Bieber’s legal predicaments. You may now exhale as I view these issues through the lenses of law.

After 72 days of marriage Kim Kardashian and Kris Humphries are lowering the curtain on their marriage – raising several legal questions in the process, such as whether or not the couple can seek an annulment.

An annulment is a legal procedure that works retroactively to void a marriage as though it never occurred, and is distinguishable from a divorce that simply dissolves the marriage.

In New Mexico, and the majority of other states, annulments are only granted for invalid marriages. There are several requirements to validate a marriage. First there is an age requirement that demands a person to be 18 years-old to consent to the marriage, unless they are 16 years or older with the consent of a parent. Additionally, the court can hold that a person lacks the mental capacity to consent to the marriage, or that the basis for the marriage was founded on fraud, or duress. Lastly, incest or bigamy precludes the formation of a valid marriage.

Some of you may recall that in 2004 Brittany Spears was granted an annulment for the 55 hour whirlwind marriage to her small town sweetheart. In Spears’ case the Nevada family court judge allowed the annulment finding that there was “no meeting of the minds in entering the marriage contract” based on Spears’ claims that the marriage was simply a joke and that she lacked understanding of the ramifications of her actions to the extent that she was incapable of agreeing to the marriage. Essentially the judge granted the annulment based on the factor discussed above that requires both parties to possess the mental capacity to consent to the marriage.

Unlike Brittany Spears, Kim Kardashian will not qualify for an annulment based on any of the factors described above. After 6 months of dating, a highly publicized engagement, and a lavish 10 million dollar wedding, Kardashian’s situation is highly distinguishable from Spears’ who married at 5:00 a.m. in a Las Vegas Chapel on a whimsical “joke.” Additionally, because none of the other factors described above appear to invalidate the marriage, a petition for annulment will likely be denied, requiring Kardashian to dissolve the marriage through the traditional legal channel of divorce – see my previous blog entry describing the divorce process.

This week’s family law drama doesn’t stop with Kardashian’s legal predicament. In the early 80′s Michael Jackson proclaimed that Billy Jean was not his lover and that the kid was not his son. This week teen pop star Justin Bieber is singing a song similar to Billy Jean by adamantly denying allegations that he is the father of a three-month old child that is the subject of a paternity law-suit – *insert heartfelt rendition of Bieber’s song Baby, Baby here*.

In cases such as Bieber’s situation where a person denies paternity of a child, the paternity must be established by a court of law. In order to establish paternity one of the parties is required to file a Petition to establish paternity – similar to the Petition recently filed against Bieber. After this Petition is filed the court will schedule a hearing and order a DNA test to be conducted on the alleged father and child. If the DNA test is positive the Court will enter an order that establishes the individual as the natural father of the child, giving the father parental rights such as the right to custody and time-sharing with the child. Once paternity is established the court will order the father to pay child support based on a calculation of the parties’ respective income, medical expenses, and time-sharing with the child.

The process described above is the road that Bieber will be forced to travel to prove that he is not the father of the child. On our end, Bieber’s road through the judicial system completes our journey through Hollywood’s tumultuous week of family law issues.

Today is Monday, October 24, 2011. Everybody loves Raymond – but everybody certainly hates Mondays. Whether it’s just another manic Monday, or a case of the Mondays, the first day of the calender week has an approval rating lower than Cheetah print Speedos.

Mondays are hated, scorned, detested, and are the perfect day to write about an equally loathed topic – Divorces. Breakups aren’t easy, and divorces are downright devastating. The process is emotionally, physically, and financially draining for all parties involved, shattering the picture of happiness that was once held, requiring one to pick up the pieces and rebuild one’s life.

One of the most difficult aspects of a divorce is blindly walking through the process not knowing what to expect along the road. Today I want to cast light on the dark subject of divorce by outlining the steps that one should expect to encounter when moving forward for a divorce in Albuquerque, New Mexico.

All divorces are not created equally and vary in their degree of intensity depending on the complexity of the divorce. On one end of the spectrum there are uncontested divorces without children, debt, or personal property at issue. On the other end of the spectrum there are contested divorces where the parties’ are unable to reach an agreement on a number of issues including child custody arrangements, and the distribution of debts and assets.

For all levels of divorce New Mexico has a jurisdictional requirement that demands both parties to live in New Mexico for six months preceding the divorce for New Mexico to possess jurisdiction over the matter. Assuming that the parties’ meet this six month requirement, New Mexico is a “no fault state” which means that either party can unilaterally “Petition” the Court for a divorce for basically any reason, and one is not required to prove abandonment, abuse, adultery, etc. Typically the person seeking the divorce moves forward claiming “incompatibility” or “irreconcilable differences.”

Assuming that one can satisfy the jurisdictional requirements above, the first wave of the divorce process is generally the same whether your divorce is an uncontested divorce or a contested divorce.

In both instances, the process begins when the “Petitioner” files a Petition and Summons with the Court, and properly serves the other party – Respondent – with a copy of the Petition and Summons. The court will issue a Temporary Domestic Order, which is a Court Order that prohibits either party from engaging in behavior that affects the rights of the opposing party relating to the bank accounts, assets, debts, the children, the marital residence, etc. At this point the “Respondent” has 30 days to respond to the Petition or the Petitioner is awarded a Default Judgement.

With uncontested divorces the parties are able to resolve the matter outside of Court by reaching an amicable decision on issues such as child custody arrangements, and the division of assets and debts. The distribution of assets and debts is handled in the Marital Settlement Agreement, which is a legal document that is filed with the Court distributing the assets and debts according to the parties’ wishes. Generally speaking, any assets and debts that are accumulated during the marriage are considered “community” and are spilt 50-50 between the parties. Regarding custody arrangements, this portion of the divorce is handled in a document referred to as a Parenting Plan, where the parties’ can reach a determination on the appropriate system of custody. Once the parties reach an agreement on the distribution of assets and debts – Marital Settlement Agreement – and the custody arrangement – Parenting Plan – the parties file these documents along with a Final Decree of Dissolution of Marriage with the Court to finalize the divorce.

Contested divorces occur when the parties’ are unable to agree on any number of issues, including the distribution of assets, debts, and the appropriate custody arrangements. Contested divorces add a wave of complexity to the matter and involve additional issues where the parties are forced to work with one another – typically through an attorney – to resolve issues such as: (1) Attorney Fees, (2) Interim Spousal Support, (3) Interim Custody Arrangements, (4) Distribution of assets – including businesses, vehicles, retirement accounts, IRA’s, personal & real property, etc., (5) Distribution of debts – including credit card debt, real and personal property with reverse equity, student loans, etc.

When the parties’ are unable to reach an agreement on these issues the Court will refer the parties’ to a settlement facilitation, where the parties and their respective attorneys will sit down with a mediator in an attempt to reach an agreement on the contested issues. The case will proceed to a trial on the merits when the parties’ are unable tor resolve contested issues during settlement facilitation

Assuming that the parties are able to reach an agreement during settlement facilitation the facilitator will memorialize the agreement in the form of a stipulated agreement, filing this document with the Court along with a supplemental Marital Settlement Agreements or Parenting Plan, and a Final Decree of Dissolution of Marriage to finalize the divorce.

This is a basic roadmap of what to expect from beginning to end with the typical contested and uncontested divorce in Albuquerque New Mexico. Because no two marriages are the same, no two divorces will be identical either. Each divorce brings with it a host of emotions, and specific facts relating to that particular case. If you are experiencing a specific issue with your divorce contact Matthew Legan Sanchez for an in-depth evaluation of your legal rights and options. In the meantime, enjoy your case of the Mondays.

It’s fitting that you discovered this blog while navigating through the open seas of the internet because today is a beautiful Columbus day in 2011.  This weekend I was watching the news and noticed that yesterday afternoon Sir Paul McCartney tied the knot for the third time in a low key ceremony in London. Some of you may recall that in 2008 McCartney was forced to shell out 48.7 million to settle his prolonged and widely publicized divorce. As I watched footage of McCarney’s wedding a thought flashed across my mind’s eye – Prenuptial Agreement.

It is an outdated notion that prenuptial agreements are only utilized by wealthy men such as Paul McCartney. The disparity in wages between men and women is vanishing each year. Presently the unemployment rate is lower for women than men – not to mention the fact that 58% of last year’s college graduates were women, and women accounted for 65% of my graduating class in law school. When one adds to this equation the fact that approximately 50% of all marriages end in divorce it becomes increasingly apparent that most Americans should weigh the benefits of obtaining a prenuptial agreement before marriage.

So what is a prenuptial agreement? At it’s core a prenuptial agreement is simply a contract that governs how one’s assets and property will be distributed upon divorce. Because New Mexico is a “community property state” any assets, debts, or property that are accumulated during the marriage – other than gifts, bequests, or inheritances – will be split 50-50 upon divorce. Prenuptial agreements provide the parties’ with a means to clearly delineate their separate property prior to entering into the marriage, and the proper distribution for any assets and property accumulated during the marriage, to avoid the prospect of protracted litigation in the event of divorce.

There are five basic requirements for a valid prenuptial agreement – First, the agreement must be in writing, and oral prenups are unenforceable despite the fact that oral contracts are enforceable at law. Second, the agreement must be executed voluntarily and cannot result from fraud, duress, undue influence, or lack of capacity. Third, there must be full disclosure where each party presents a complete and accurate representation of the property and assets that one possesses prior to the marriage. Fourth, the agreement cannot be unconscionable. For instance, New Mexico case law holds that it is against public policy for a prenuptial agreement to waive a child or spouse’s right to support – i.e. prenuptial agreements cannot waive child support and alimony. Fifth, the agreement must be executed by both parties before a notary public.

Matthew Legan Sanchez signing in on a gloomy and overcast Friday, with a weekend full of rain on the horizon. Today seems like the perfect time to examine a gloomy and emotionally charged issue in New Mexico – the dark days of child custody battles.

Custody disputes generally arise after a breakup or divorce when the mother and father are unable to reach a amicable agreement on the appropriate custody and timesharing arrangement for their children. When these disagreements occur the Court is forced to intervene to determine the appropriate system of timesharing between the feuding parents.

It is well established that the sole factor in child custody decisions is the best interests and welfare of the child. From the onset the Court views the custody issue through lenses that see parental rights as a basic right of our society that form the very heart of our social structure. As such, the Court presumes that joint custody is in the best interests of the child – legally “joint custody” means joint authority to make major decisions in the child’s best interests and does not mean an equal division of time or responsibility. Nevertheless, the welfare of the child is the Court’s primary consideration.

The Court implements a three tiered approach to determine the best interests of the child. The first tier involves referring the parties to mediation, in the hopes of facilitating an amicable agreement. When mediation fails the Court refers the parents to Court Clinic for an “Advisory Consultation” where a Court Clinician will interview all of the parties, review the relevant information, and then present the Judge with a recommendation for the appropriate system of timesharing. If a parent disagrees with the Court Clinic’s Recommendations they must object within eleven (11) days from the date the Recommendation is entered, and voice their objections before the Court. The Court will either enforce the Court Clinic’s Recommendations or will appoint a private child custody expert, an11-706 expert, to conduct an intensive – and very expensive – evaluation that is presented to the Court in the form of an 11-706 expert report summarizing the expert’s findings, and proposing a system of timesharing. If the child is under 14 a Guardian ad Litem – an attorney appointed by the court to represent the child – may conduct a background investigation of child, working alone or in tandem with the 11-706 expert to provide recommendations before the Court.

In situations where the child is 14 years or older the child’s desires will heavily influence the Court’s decision unless there is strong evidence to suggest that the child’s wishes are contrary to the best interests of the child.

As illustrated above, the court is presented with several options to determine the appropriate custody and timesharing arrangement for a child when parents are unable to reach an amicable decision. Although these options very in their intensity, scope, and expense, the Court’s ultimate goal is to determine “the best interests of the child.” Within each level the following factors are evaluated to reach a determination on the best interests of the child: (1) the wishes of the child’s parents or parents; (2) the wishes of the child; (3) the interaction and interrelationship of the child with her parents, her siblings, and any other person who may significantly affect the child’s best interest; (4) the child’s adjustment to her home, school, and community; and (5) the mental and physical health of all individuals involved.