No Fault Divorce: New Mexico was the first no-fault state. In no-fault states, the courts don’t pursue who is right, or is wrong in a marriage and divorce requests are ordinarily granted. Attorneys are typically retained to concentrate on complex issues involving children, alimony, child support, or the evaluation or distribution of property, areas in which all WFL lawyers have broad experience. Attorneys at WFL are leaders in various state and national programs and frequently provide domestic relations law training to other lawyers in New Mexico and elsewhere.

Importance of Counseling: Divorce is often emotionally difficult. Counselors deal with the emotional issues of a divorce more efficiently than lawyers and can frequently provide better emotional support and reduce legal expenses. WFL refers clients who do not have their own counselor and would benefit from counseling to a number of excellent mental health professionals who specialize in supporting the emotional needs of clients and their children as they go through this transition.

There are two basic issues in custody cases. The first to be determined is where the children will spend time, and with whom (or periods of responsibility). The second is who will have legal responsibility for the children (or whether custody will be joint or sole). Domestic Relations law varies by state and these custody issues may be affected by the laws of the jurisdiction in which the divorce takes place.

Quite often, clients who can establish residency in New Mexico opt to do so. Clients state that the New Mexico legal climate is thought to be less litigious and attorney fees are typically lower. WFL has handled scores of complicated custody cases and is current in all areas of child custody practice, including those involving multiple jurisdictions, such as New Mexico and another state or another country.

Provisions of federal and international law govern custody cases involving jurisdiction disputes between different countries and New Mexico. The country where the child has lived usually determines custody, although there are many complexities in law ’s application.

WFL has handled custody cases involving:

• Children detained by a local parent while visiting from their home abroad. WFL has represented local parents in determining if they have the right to keep the child here and has also assisted foreign parents in obtaining the children’s return.
• Children of an American parent trying to get their child back from a foreign country.

Clients contemplating moving abroad, or coming here with a child from another country, should discuss the legal implications of doing so, even if they believe their marriage is good. The laws are complex and mistakes can be devastating.

When parents disagree about child custody, the Court requires them to participate in mediation to try to reach an agreement before they are free to go to court. Reaching an agreement is not mandatory, however, and if no agreement is reached, the parties must go through other court processes. All WFL attorneys have had mediation training and can assist clients before and during mediation.

Walther Family Law attorney David Walther has published many articles on the subject of custody, including The Uniform Child Custody Jurisdiction Act, Ethical Issues Where the Child’s Interest Diverge from the Parents, Conflict of Interest Between Parent and Child and Further Developments: Conflict of Interests Between Child and Parent. Gretchen Walther has published Power Imbalances in Mediation.

Child support is driven by a formula that uses variables including the amount of time the child spends with each parent, the gross monthly income of each parent and what extras the parents have agreed to provide. Each of these variables is subject to dispute. In addition, the law allows for deviations from the generally accepted guidelines. Counsel should be consulted prior to agreeing to child support.

Alimony is generally determined based upon the need of the recipient and the ability of the payor to meet that need. However, the factors that go into these considerations are complex indeed, and its determination leaves many areas for dispute. The factors on which alimony is based include the following:

• Age and Health of the Parties
• Earning Capacity of the Respective Spouses
• Efforts of the Respective Spouses to Be Employed
• The Needs of the Spouses
• The standard of living during the term of the marriage
• Medical insurance
• Life insurance
• Duration of the marriage
• Property award
• The type of the spouses’ assets
• Spouses’ liabilities
• Income produced by property
• Prior agreements entered into by the spouses

Property division cases can be complex and are often contentious.

WFL attorneys are experienced in both asset discovery, particularly when full disclosure is not forthcoming, and in complicated property division. David Walther has taught Community Property law at the University of New Mexico Law School. As a New Mexico delegate to the Council of Community Property States, Gretchen Walther is abreast of all developments in community property law nationwide.

Community Property In General: New Mexico is one of nine community property states. Any property acquired during a marriage is generally community, although there are many exceptions. Community property sometimes can be traced into separate property or vice-versa. In these cases the separate and community property are divided proportionately by formula.

Out-of-State Community Property: Each of the nine community property states has their own variety of the law. Sometimes, the property law of other states is used to guide New Mexico courts in making decisions. Sometimes, the property law of other states actually controls the division of property in New Mexico cases. WFL attorneys can determine which body of law applies in a particular case by conferring with clients.

Equally complex is the evaluation of businesses, pensions, real estate or personal property.

Business Valuations: Businesses can be among the most difficult assets to adequately value. Marital partners are typically not fully versed in all aspects of a spouse’s business and that can make adequate discovery challenging if the business owner is uncooperative. WFL attorneys are aggressive in pursuit of reticent spouses and work closely with experts to find hidden assets and to determine the best formulas for valuing them and the total worth of a business.

Personal or Real Property Values: Real estate or valuable personal property can also be difficult to value. WFL works with expert appraisers to price the property. Evaluations are always a matter of judgment, however, and WFL scrutinizes and frequently challenges evaluations.

Pensions: Retirement plans are generally divided by a qualified relations order that divides the account into two, one for each spouse. Sometimes, however, it is necessary to get an expert to value the plan. WFL works with experts with whom the attorneys have had experience in the past.

Alterative Approaches to Domestic Relations Disputes

Many people believe divorce and family law issues are a personal and emotional matter rather than a legal event. They believe traditional, litigated divorce settlements are inappropriate for parties who wish to resolve their issues outside the legal paradigm on a basis more suitable to their individual circumstances. The adversarial system can be long, costly and rancorous, particularly when children are involved. Both Mediation and Collaborative Law address these concerns.

Mediation: In mediated divorces, couples choose an impartial third party to facilitate resolution of the disputed aspects of a divorce. While remaining neutral and impartial, mediators promote voluntary agreement. Versus litigated divorce, mediated divorces

• Enable self determination
• Are more likely to result in satisfied clients who, in turn, are more likely to comply with the provisions of a divorce settlement
• Are twice as likely to result in improved relations between the parties, which can be critical for the well being of involved children
• Are significantly less expensive

Professionals including psychiatrists, psychologists, family counselors, social workers and lawyers frequently serve as mediators. To ensure that mediation results in a fair as well as an agreeable settlement, WFL believes lawyers should participate either as mediators or as client representatives in mediation. All of WFL attorneys are certified mediators, able to mediate the issues alone, or in co-mediation with an accountant, a mental health professional, or a social worker. WFL believes it is preferable for parties in mediation to be represented separately by a lawyer with mediation experience and client partiality to ensure that their agreement properly protects them, however,. This is particularly important where the mediator is a non-lawyer.

Gretchen Walther's article, Power Imbalances in Divorce Mediation, provides insight into some of the pitfalls of mediation and how they can be addressed.

Collaborative Law: In a Collaborative Law divorce, both parties are represented by lawyers who have contractually agreed not to participate in court proceedings on this dispute. Each lawyer works proactively on behalf of his or her client, but cooperatively with the spouse and his or her lawyer to settle out of court.

Collaborative law differs from Mediation in one very key respect: Mediators must maintain neutrality as they move towards mutually agreeable solutions. But, a mediator’s neutrality can work to the detriment of the “powerless” or financially uninformed party to the divorce. Collaborative lawyers represent the interests of their client vigorously, just not litigiously.

Walther Family Law has been instrumental in bring Collaborative Practice to New Mexico and enthusiastically promotes Collaborative Divorce. A fuller description of Collaborative Divorce is found on the Collaborative Divorce page of this website.

Walther Family Law attorneys have published many articles on the subject of Mediation and Collaborative law, including Alternative Dispute Resolution Processes for Family Law Matters, Ethical Challenges for Lawyer Mediators, Power Imbalances in Divorce Mediation, Dual Representation in Domestic Relations and Ethical Issues in Collaborative Law.

Decisions of hearing officers can be appealed to the district court and those of the district court can be appealed to the Court of Appeals. Since the majority of the decisions on appeal are affirmed, appellate work is usually the most challenging work law firms perform. In appellate cases, the law and the trial court records must be carefully reviewed by WFL for errors of law or wrongful decisions on the facts by the court. If that has occurred, WFL prepares a brief for the Appellate Court or, sometimes, also presents an oral argument.

Both David Walther and Gretchen Walther have extensive appellate experience in complex divorce and family law cases. Mr. Walther is the author of several books and articles for lawyers on this subject, including Appellate Practice and Appellate Practice and Procedure in Wisconsin.

Often parties reach agreements prior to marriage that attempt to resolve all of the issues between them in case of divorce. The purpose of such agreements is to vary the provisions that the law otherwise would allow. To be valid, such agreements must follow certain requirements to guarantee that they are fair and proper. If the agreement is not proper, it can be challenged in court. Upon divorce, many people believe that these agreements do not secure them what they are entitled to, or sufficiently protect their assets from improper claims. WFL helps clients construct Pre-Nuptial Agreements that minimize the chances of being challenged at a later date and litigates improper Pre-Nuptial Agreements.