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What
We Do
Our firm focuses
exclusively on divorce cases and family law, from the most complex
to the least difficult.
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DIVORCE
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No-fault Divorce. Because New Mexico is a no-fault state,
a party requesting a divorce is ordinarily granted one. This means
we are required to concentrate our attention on other complex issues.
The courts do not pursue who is right, or who has done wrong in
a marriage. Thus the outcome of the case depends upon choices we
make with the clients as to disputes over children, alimony, child
support, or the evaluation or distribution of the parties' property.
Our lawyers not only have experience in each of these areas, but
we have been leaders in various state and national programs, which
has allowed us to bring our experience and provide training to other
lawyers in New Mexico and other states.
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Importance of Counseling. Divorce is so emotionally difficult
for a party that, in our experience, it is helpful for our clients
to be in counseling while they go through the process. Counseling
also helps our clients reduce legal expenses. Many of the issues
in divorce are emotional. Counselors can deal with those issues
more efficiently than can lawyers. We have a number of excellent
mental health professionals that we can refer you to, if you do
not have a counselor of your own.
•
CUSTODY IN GENERAL
Child custody
cases may involve only the state of New Mexico, or they may involve
different states including New Mexico, or they may involve different
countries and New Mexico. The issues in a custody case are basically
twofold. The first to be determined is where the children will spend
time, and with whom. We call this periods of responsibility. The
second is who will have the legal responsibility for the children
(called joint or sole custody). We are required to stay current
in all those areas of child custody practice, and we have experience
in all of them.
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International Custody. Custody cases involving jurisdiction
disputes between different countries and New Mexico are governed
by various provisions of federal and international law. The country
where the child has lived usually should determine that child's
custody, although there are many complexities in the application
of this law. Some of our cases have come about when a child who
lives abroad comes here for a holiday visit, and the New Mexico
parent refuses to return the child. Sometimes the parent has good
reason for refusing to return the child, and sometimes the parent
is retaining the child improperly. It is our job to help the local
parent decide if they have the right to keep the child here. Sometimes
we must help the foreign parent get their child back. Some of our
cases involve an American parent trying to get their child back
from a foreign country. If you are contemplating moving abroad,
or coming here with a child from another country, it is best to
discuss the legal implications of doing so, even if you believe
you have a good marriage. If you live in Europe with a child for
more than six months you may be prohibited from returning with that
child to live in the United States, if the other parent objects.
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Custody Between New Mexico and Other States. Custody disputes
between other states and New Mexico are usually governed by the
Child Custody Jurisdiction Act, which has been adopted in most states,
and federal statutes governing child custody disputes between states.
Generally, the state where the child lives should determine custody
questions with respect to that child, but there are many exceptions
to this general principle, both in the federal statutes and state
statutes. We would consult with you to determine whether any of
these exceptions apply.
•
New Mexico Custody. Many people move to New Mexico from other
states and countries. This requires us to be prepared to handle
these multi state cases involving many other jurisdictions. In New
Mexico, custody is based upon the best interests of the child. This
determination is based on many complicated interrelated factors.
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Joint vs. Sole Custody. There is a strong presumption in
New Mexico in favor of joint custody. This does not mean equal periods
of responsibility with the child but rather it means equal responsibility
for the major decisions in the child's life, such as the child's
school, medical care, religion, or where the child will live. Sometimes,
in unusual cases, based on many complex factors, sole custody is
found to be best for the child.
•
Custody Mediation. If the parties are unable to reach an
agreement as to the type of custody for the child, or what the periods
of responsibility should be, they are required to participate in
mediation to attempt to reach an agreement before they are free
to go to court. The parties are not required to reach an agreement
if either of them believes an agreement would be unfair. It is always
better to confer with a lawyer that has had mediation training before
you begin mediation.
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Mental Health Assistance. Often, we will have the parents
confer with a mental health professional to receive advice as to
what is best for the child. Sometimes a mental health person is
appointed by the court to give an opinion to the court as to what's
best for the child. We have worked with many of the best of these
professionals in New Mexico to help our clients decide what is best
for their children. Further, if your child would benefit from therapy,
but do not have a child therapist, we can refer you to several of
the best.
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PROPERTY DIVISION
Property division
cases can be complex.
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Community Property In General. New Mexico is a community
property state. Any property acquired through the effort of either
party during the marriage is generally community, although in New
Mexico earnings from separate property are not community. Sometimes
community property can be traced into separate property or separate
property can be traced into community property. Then the separate
and community property have to be divided by a formula that divides
the assets proportionately.
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Out-of-State Community Property. There are nine community
property states, each with their own variety of law. Gretchen
Walther is a New Mexico delegate to the Council of Community
Property states where they can keep abreast of all the new developments
in community property law nationwide. This is important, because
sometimes the property law of other states is used to guide New
Mexico courts in making decisions.
Sometimes
the property law of other states controls the division of property
in New Mexico cases. We confer with our clients to determine
which
body of law applies.
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Property Evaluations. Equally complex is the evaluation of
businesses, pensions, real estate or personal property.
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Business Valuations. Business valuations require the hiring
of an expert who can use various methods of evaluation in determining
the worth of a property. We work with the best evaluators in the
state to determine the fairest formula to be used in valuing a business.
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Personal or Real Property Values. Real estate or valuable
personal property is also valued by an expert appraiser who will
place a price on the property. However, these evaluations are always
a matter of judgment. We must scrutinize these very carefully, and
often are requested to challenge them.
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Pensions. Retirement plans are generally divided by a qualified
relations order that can divide the account into two accounts, one
for each spouse. Sometimes, however, it is necessary to get an expert
to value the plan. We work with experts with whom we have had experience
in the past.
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CHILD SUPPORT
Child support
is based upon a formula. The variables of the formula include 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 to the child. Each of these variables are often subject
to dispute. Further, the law allows deviation from these guidelines,
based on a complex set of factors. These factors must be carefully
examined before the child support is agreed upon.
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ALIMONY
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:
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Age and Health of the Parties
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Earning Capacity of the Respective Spouses
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Efforts of the Respective Spouses to Be Employed
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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.
• FAMILY
LAW APPEALS
Decisions of
hearing officers can be appealed to the district court. Decisions
of the district court can be appealed to the Court of Appeals. Within
our firm, David
Walther has had extensive appellate experience and has written
books for lawyers on this subject. Gretchen
Walther has also had New Mexico appellate experience in complex
divorce and family law cases. The majority of the decisions on
appeal
are affirmed. Therefore appellate work is probably the most challenging
work our firm performs. We must carefully review the law and the
trial court records to see whether there have been errors of law
or wrongful decisions on the facts by the court. If we find that
has occurred we then prepare a brief for the Appellate Court. Sometimes,
the Appellate Court wants us to also present an oral argument.
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FAMILY LAW and MEDIATION
Many people
believe divorce and family law issues are a personal and emotional
matter rather than a legal event. They believe the traditional adversary
system is inappropriate for parties ending their marriage who may
wish to resolve their issues outside the legal paradigm and on a
basis more suitable to their individual circumstances. They also
believe the adversarial system can be too long, costly and rancorous
particularly when children are involved. Although many other professionals
practice as mediators, we believe that in a divorce case, lawyers
should participate either as a mediator or as the representative
of the client in mediation.
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Lawyers As Mediators. All of our attorneys are certified
mediators. Gretchen
Walther has done extensive research and writing on mediation.
They are able to mediate the issues in a divorce case, either alone,
or in co-mediation with an accountant, a psychologist, or a social
worker. They can employ their extensive experience in the law to
help parties seeking a fair agreement.
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Lawyers for Parties in Mediation. In addition, we believe
parties who are in mediation should be represented separately by
a lawyer with mediation experience to see that their agreement properly
protects them. This is particularly important where the mediator
is a non-lawyer. Gretchen
Walther has written an article on Power Imbalances in Divorce
Mediation.
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PRE-NUPTIAL AGREEMENT LITIGATION
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The Agreement. Often parties reach agreements prior to the
marriage to attempt to resolve all of the issues between them in
the event of a 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.
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We Litigate. If the agreement is not proper, it may be challenged
in court. Upon a divorce many people believe that these agreements
do not secure them what they are entitled to, or sufficiently protect
their assets from improper claims.
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