D  e  s  e  r  t     E  x  p  o  s  u  r  e  January 2006


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Some of the things about our divorce system that can turn your hair white.


This time of year is stressful, and stress can be hard on relationships. So what is more timely than a The People's Law column about divorce? (This is an update of a topic originally covered in the February 2001 Desert Exposure.)

Sometimes it seems divorce clients have sadder situations than accident-victim clients. It never ceases to amaze me how much psychic damage can be done to the members of a divorced family. Maybe that is why I no longer do divorces and the like.

Years ago, most of my law practice was divorce work (lawyers usually call it "family law"). I got so upset at the adversarial divorce legal system and at the parties and lawyers that I stopped taking these cases. It made my hair turn white, and I was afraid what would happen next.

Here are some of the issues that come up in divorce cases:

Child Custody/Visitation Mediation Program

Las Cruces has had a mandatory child custody/visitation mediation program for a number of years, and the Sixth Judicial District (Silver City, Deming and Lordsburg) has one, too. Once people file for a divorce that involves a minor child (under 18 years old), unless the parents have already agreed upon everything about the custody and visitation ("time sharing"), the parties are required to meet with a trained mediator, who works with them to come to an agreement on custody and visitation. The parents do not have to reach an agreement, but they have to try to do so. (If there has been domestic violence, the parents do not go through this mediation program.)

While this mediation program costs each parent money (on a sliding scale, based on ability to pay), it usually saves a lot of money for them in reduced attorneys' fees and court hearings. More important, if the mediation results in an agreement by the parents, it saves a lot of stress and anxiety for the parents and the child. Also, experience shows that everyone is more likely to comply with the details of custody and visitation or a "Parenting Plan" if it comes from their voluntary agreement, rather than being forced on them by the court. This makes the court happy, too.

There is one thing I do not like about the custody/visitation mediation program, though. It seems like it results in an agreement to "joint custody" way too often. The law in New Mexico creates a preference (but not a mandate) for joint custody instead of one parent having sole custody and the other parent having only visitation. The legislature passed this law years ago to show that both parents are equally important in their child's life. This is true in principle, and "joint custody" sounds good. But it usually isn't.

Joint Custody

Joint custody is when each parent has equal say in important decisions about the minor child. It does not necessarily mean time with the child is evenly split or even that each parent has the child a lot of the time. (Joint custody can involve dividing the child's life evenly or almost evenly between the two parents, although that usually results in a very unhappy, messed-up child over time. The children do not feel like they have a home.)

When there is joint custody, decisions about where the child lives and goes to school, church, the doctor, etc., must be jointly agreed upon by both parents. If the parents cannot agree, the Parenting Plan sets out a series of procedures the parents must go through until the issue is resolved. The conflict-resolution procedures may include the parents having to consult a counselor, go through a mediation process, use arbitration or, if all else fails, go to the judge.

Think about if you are the parent with whom the child usually lives. You cannot move out of the county or take the child to a doctor for a non-emergency without getting your ex's consent. Well, you can move, but you can't take the child without the ex's consent. Sure, this is a great idea. If the two of you could calmly and rationally communicate about important things like this, you would still be married! Joint custody is one government idea that just doesn't usually work as intended and actually encourages fighting between the divorced parents. If you get divorced, think long and hard before you agree to joint custody. Don't let yourself be intimidated into agreeing to it if you do not believe it will work.

Temporary Domestic Orders

Many people are already familiar with these temporary restraining orders. When you file for divorce, a Temporary Domestic Order ("TDO") automatically goes into effect, and is immediately binding on both parties until the divorce is over. The TDO orders the parties: not to harass each other, not to interfere with the other parent's relationship with the children and not to do anything with the kids, not to throw the other party out of the home, not to run up unnecessary debts, not hide any property, not to close any bank accounts or cancel credit cards, not to cancel any auto or other insurance, etc.

TDOs are automatic statewide, but are not binding on the respondent until two days after the divorce papers are served on the respondent. The two-day waiting period becomes two free days during which the respondent can hide the community assets, drain the family bank accounts, and run up debts.

Upon the request of either party, the court will usually enter another temporary order equally dividing the parties' total income and expenses. If a party has primary child custody during the proceeding, that party gets an extra percentage of the parties' combined income as child support (10 percent for one child, 15 percent for two children, 19 percent for three children, etc).

I have previously written about Collaborative Divorce, a way to get divorced with dignity and respect for all. I will update that column soon. If you have general questions about divorce or family law, let me know and I will try to answer them in those columns.

Robert (Tito) Meyer practices law in Las Cruces, representing people who have been injured in accidents and the families of people who have been killed in accidents. Contact him by email at tito@zianet.com or phone (505) 524-4540, (800) 610-0555, or PO Box 1628, Las Cruces, NM 88004. This column is not intended to provide legal advice to any specific person, or with respect to any particular problems or situations. To find a lawyer, call the State Bar of New Mexico referral service, (800) 876-6227.

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