What is Family Law and how can we help?
What is Family Law and how can we help?
Family law is a term that encompasses the areas of Kinship Guardianship, Grand-Parent Visitation, child support, child custody, divorce, dissolution of marriage, spousal support, property dissolution and restraining orders. Family law centers around issues that families face. The Salcedo Law Firm is experienced in all of these facets.
We represent spouses and domestic partners throughout the State of New Mexico, including Tribal Courts of Isleta Pueblo and Pueblo of Santa Ana, in divorce and dissolution matters concerning the distribution of community property and separate property. New Mexico is a community property state. This means that both parties are entitled to a 50% share of the property obtained during the marriage. There are exceptions such as whether separate property contributed to the community property in which case the funds would have to be traced to determine the percentage of the community and separate property interest in the property.
It is our belief here at Salcedo Law that child custody is the most important issue in all the family law matters. The emotional stability of the children, along with the parent’s time and relationship with the child, are at stake and it is the center of most clients concern. For this reason, we take child custody matters very seriously and work hard to determine a plan that works for our client and children, as well as the opposing party. It is important to keep in mind that in child custody matters, the child’s best interest is first and foremost. In most cases, if both parents are good parents, then a plan needs to be discussed to enable the child to have a healthy relationship with both mother and father. The courts do not favor one parent over the other in child custody matters. In fact, in a divorce proceeding in New Mexico, both mother and father are granted joint physical custody unless one party can show how joint physical custody is not in the best interest of the child. In some cases, joint physical custody of the child is not ideal as one parent may be abusive or lack the ability to communicate and build a healthy relationship with the child. At the Salcedo Law Firm, the children’s best interest comes first.
New Mexico statute of limitation for collection of arrears owed to a custodial party is 14 years. Before you sign a new Order for your driver’s license or any other matter, check your case for the last time a judgment was reflected in an Order and consult with my office to determine how to address these possibly uncollectable child support arrears.
Spousal support is based on the parties income. Sometimes, during a marriage one party contributed to the household while the other party earned an income. New Mexico does provide for spousal support if appropriate. The supporting spouse may receive spousal support for their life unless the spouse dies or remarries if they were in a long term marriage.
At the Salcedo Law Firm, we know that couples faced with divorce are going through a very difficult time filled with confusion, stress and anxiety. We try to alleviate these concerns by placing our clients on a path to enter the new stage of their lives, having obtained their full entitlement in the divorce.
In some cases, an individual can become abusive towards a spouse or child. In these cases it is best to obtain restraining orders. Courts will usually grant a temporary restraining order with sufficient evidence. At a hearing on a temporary restraining order courts will usually set a hearing date for permanent restraining orders which can last up to 5 years. This requires more evidence as a permanent restraining order is lengthier in time.
The Indian Child Welfare Act protects Native American children in adoption and foster care placement and in the termination of parental rights. This generally doesn't come into play when parents are divorcing.
That does not mean that tribal courts don't have jurisdiction for child custody. If you're going through a divorce and either party is Native American, call us. We have vast experience working with several Pueblo tribal courts here in New Mexico.
The main ingredient you need to assure is in your will is intent. If intent to convey property to a beneficiary is unclear, or can be read as ambiguous, you risk the court not being able to discern your wishes and creating an unresolved probate matter. If you want to give your property to somebody, but want to add conditions or create a trustee for whatever reason, be careful what power you give the trustee as "wide discretion" to the trustee without a clear plan on how the trustee handles the property meant for another can be fraught with problems. It is suggested that you review your estate to determine what you want to go through probate and what items, you may want to avoid probate by designation of a payable on death (pod) account, transfer on death deed (todd), or insurance beneficiary designation. If you do not have a will, the laws of intestacy will determine which of your family has priority and how to divide such property among your heirs. In life, it is hard to think about these matters, but in death, the heirs and beneficiaries will be the ones to feel the stress when you are gone so considering where you want your property to end up sometimes is a kindness to all.
Where you are victim or accused of domestic violence, the civil restraining Order proceedings involving an intimate party/household member may have effects on your immigration application. If you are a victim of domestic violence and you have never reported it or documented it of any kind, your ability to prove your victimization to immigration and apply for a "U visa" may be significantly hindered. If you need relief or shelter, call the domestic violence hotline at 1 800-799- SAFE.
If a minor has been residing with you at least 90 days, there is a presumption for guardianship in your favor. If both parties are willing to consent to the guardianship (which is not an adoption as each parent keeps their parental rights), this will move your guardianship case along. If you seek to terminate guardianship, please understand it will be difficult to try and keep any type of "rights" over the child(ren) as you are not the parent. You need to be sure that seeking guardianship or terminating it will be in the child's best interest.
If you and your spouse have a clear understanding and agreement on how to divide property, debt and to parent your children including visitation and child support, then your case may be one where you can have documents drawn up in an uncontested divorce. If you have an attorney write up the documents and the attorney is not representing either party, the attorney is limited on any advocacy for one side or the other and should serve as a "drafter" of such agreement rather than advisor. The attorney may tell you what the Court looks for in a Marital Settlement Agreement (MSA) and Parenting Plan to assist in the drafting but the main goals and wishes of the parties drive the drafting. It is best once it is drafted that the parties seek independent counsel to assure his/her interest are protected and if a party does not wish to seek such counsel, then the drafting attorney should note that the party waived this right to have counsel review the divorce paperwork.