Gaining a better understanding of the divorce process will allow you make informed decisions at every step along the way, from choosing the right divorce attorney and informing your spouse that you’re getting a divorce to preparing for a deposition or trial. Learn about the three options for divorce in New Mexico, including an alternative method called collaborative law, so that you can choose the approach with which you are most comfortable.
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Hosted by: Dianna Shepherd, Editorial Director, Divorce Magazine
Guest speakers: Family Lawyers - Family Lawyers – Robert Matteucci and Tatiana Engelmann. Robert Matteucci is an attorney at Atkinson & Kelsey. He concentrates his practice on family law, including divorce, division of assets, custody, support, and collaborative law. He specializes in family law cases involving business ownership, substantial assets, and complex asset and liability issues. He holds a Master of Business Administration from Tulane University and a law degree from The University of New Mexico. Tatiana Engelmann is an associate attorney at Atkinson & Kelsey. She graduated from the University of New Mexico law school in 2004 and currently focuses her practice on family law, including divorce, custody, child support, spousal support, and collaborative law matters. She has previously practiced in many other areas of law including water, real estate, construction, and employment law. Learn more at www.atkinsonkelsey.com.
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Matteucci: The procedure begins by first filing a Petition of Dissolution of Marriage. That’s a document that notifies the court that you are planning on getting a divorce, and it can be filed by either one of the parties. After that, typically, the parties do the best they can to decide how they can divide the assets and liabilities and, if there are children, to figure out custody issues as well as child support and spousal support. Sometimes clients do that on their own, but there are different views about how things should be set up – whether it be visitation, custody, or division of assets – and sometimes attorneys are brought in to hopefully settle things without going to court.
Once that process starts, an interim division of income and assets is put together. That document splits up the income of the parties and decides how much each party is going to get from the income during the pendency of the divorce: from the date of the petition being filed until the day they get a divorce. During that period of time, they will file a document that tells the court how much each party will be getting to live on until the day of the divorce.
After the negotiations are settled, a document called a Marital Settlement Agreement is filed with the court as well as a Final Decree. Those two documents become an order of the court that states who’s going to get what assets and liabilities. The Final Decree is a very short document, usually two pages, and is signed by the judge. Once that Final Decree is signed, the parties are divorced. If there are children involved, a third document is filed. That document is a Parenting Plan, which will spell out the time the children are going to spend with each party. It may include child support and all kinds of other issues regarding holidays and summer vacations. These are mentioned to detail how the children will spend their time with the parent. Once those three documents (the Marital Settlement Agreement, the File Decree, and the Parenting Plan) are signed by the court, the parties are divorced.
Q: Even though we know that every divorce is different, how long does a typical divorce take? Is there anything a person can do to shorten the divorce process?
Matteucci: The question about the period of time it takes to get a divorce is one of the first questions that most clients ask, and it’s a tough one to answer. Typically, a divorce goes as fast as the slowest party. A client may want to get the divorce done as soon as possible, but if their spouse is going through the emotional process of dealing with the divorce, the they may take longer to make decisions. If there’s a lot of animosity and disagreement about issues regarding the children or the assets, the division of assets, child support, or spousal support, a divorce can take a very long time. There have been cases where divorces have taken three or four years.
Typically, a good attorney does everything they can to do two things. One is to get the divorce done as quickly as possible without hurting either party and making sure that there’s a fair deal for the client; they want to get it done in a timely manner. The second thing is stay out of court. Once the court process or litigation starts, the cost of divorce will increase and the divorce process will last longer. We try to avoid court, but sometimes it has to happen. It’s important for your attorney to work with the opposing attorney to see if a compromise can be worked out: one where both parties are to be taken care of satisfactorily. Picking an attorney can be really important, because if a good attorney is chosen, the divorce can take less time, and the costs will be less because they’re not going to proceed to court unless they absolutely have to.
Q: What pitfalls should someone just starting his/her divorce watch out for in the process?
Engelmann: There are a lot of pitfalls in the divorce process. The first is not understanding the process: too many people go into a divorce and don’t have any idea how it works. Obviously, the attorney understands the ins and outs better than you do. However, there’s so much information out there and so many opportunities in that first meeting to ask questions. The best way to really understand the divorce process is to take an active role and make the decisions along the way.
If you’ve been involved in a civil litigation case – construction law, for example – that case is not going to proceed in the same way as your divorce would. It’s an entirely different process. Educate yourself on the process, ask questions of your attorney, and also ask questions of your family and friends and other people you know that have been through the process.
However, that also leads to the second pitfall of the divorce process: listening too closely to other people’s success stories and the horror stories. Remember that your divorce is your divorce. It will be unlike anybody else’s divorce, because all the facts and circumstances surrounding your divorce are going to be different than those of your cousin or your best friend. It’s okay to listen to those stories, but don’t rely on them too closely. Don’t anticipate that you’re going to be awarded a large sum of money – or that you’re going to get kicked out of your house – because your friend was.
Another pitfall would be hiring an attorney that you’re not comfortable with. I’ve had several clients recently that have come to me from other attorneys; they just didn’t feel comfortable with their previous attorneys and ended up having to switch. Make sure you’re comfortable with your attorney. You’re going through a very emotional process. This is a big change in your life and you want to hire someone that you can talk to, that you feel listens to you, is knowledgeable, and has your best interests and those of your children at heart when they’re giving you advice. If you’re not comfortable, don’t feel bad. Move on and find an attorney that you’re comfortable with, because you want that relationship to grow through the divorce process and you have to have trust. If you’re not comfortable, you’re likely not going to be able to trust that attorney either.
Another pitfall would be forgetting that people behave differently in the divorce process. Again, it’s a very emotional time for everybody. Remember that people will do things that you didn’t think they would do, so let yourself off the hook if you didn’t anticipate those things. People behave differently and people may shock you completely with things like trying to hide assets or take the kids to another state. It’s important to take it just one day at a time. When those things come up and it becomes overwhelming for you, remember that you’ve hired an attorney to take on those issues. Your attorney is there to walk you through the legal process, but they’re also there to take on some of that emotion and those things that make you feel uncomfortable in the process. Your attorney is there to get you through the legal process and to support you in such a way that you can get to the end of the process.
Q: Speaking of picking a good attorney, do you have any advice on how people should go about choosing the right attorney for them?
Matteucci: In almost every divorce I have been a part of, there are two issues that come into play or two processes that affect a divorce. The first one is the division of income and assets and how much each party is going to get from the community assets and liabilities… and how much time one spouse or the other will spend with the kids. That’s the rational and mechanical part of the divorce.
The other part of divorce is the emotional aspect. There’s a lot of pain, fear, and anger involved in divorce; these emotions often cloud rational thinking. The attorney must be somebody they feel comfortable with and trust will take care of the child support, the spousal support, and division of assets fairly. The attorney also must be somebody they can talk to about why they want certain provisions regarding the assets and liabilities and the children. You need to feel comfortable that your attorney is taking care of you, and be able to communicate with them very easily.
There are attorneys that are very good at the mechanics of divorce. There are also attorneys that can communicate very well with a client and take care of their needs – needs that may not have anything to do with the numbers or the time share, but just the feelings about what’s going on. Sometimes, you need to interview two or three different attorneys before you find the right one for you. During the process of divorce, you’re going to spend a lot of time with that person and you have to feel confident and comfortable with that attorney.
Q: How should someone prepare for their first meeting with their divorce attorney?
Engelmann: The best thing to do to prepare for your first meeting is to gather as much information as you can. For example, some people may not have access to financial information. If you don’t have access to those things right away, just bring yourself and be prepared to listen. If you do have access to that kind of information, then bring it to the first meeting. That would certainly help the attorney and shed light on things like the assets and liabilities, which will allow the attorney to better give you advice on how long the process will take and what kind of things you can expect to happen in the process. It would also give the attorney the opportunity to more accurately estimate the fees: when there are lots of assets and liabilities, it’s generally a more expensive divorce than if there are little to none. If you have fewer assets and fewer liabilities, then you could probably have a more speedy divorce.
Bring financial documents like tax returns and recent pay stubs to the first meeting if possible. If you don’t have access to that information, it’s okay to just come with your listening ears on and be prepared to ask as many questions as you want. That first meeting is a good chance to get to know your attorney and get to know the process. You don’t have to dive right in with things like financial documents.
Q: Can someone bring a relative or friend along with them when they meet with their lawyer?
Engelmann: I always say yes. The divorce process is a pretty emotional time for everybody involved, and it is a good idea to rely on your support system from the beginning of the divorce to the end of the divorce. If you feel as though you need to bring your parent or a friend, that’s okay with me. It’s probably a good idea to ask the attorney ahead of time if they have any objection to somebody coming along, but I can’t think of any reason why you shouldn’t have your support system there – especially when you’re talking about divorce and what it’s going to take to accomplish that.
Q: Let’s say that a couple has decided that divorce is the right option for them, but they haven’t actually done anything about it yet. What are the first steps they should take?
Matteucci: The first step is to interview attorneys to find one you feel comfortable with.
Before that process starts – and assuming that you’re having some kind of communication with your spouse – you may want to discuss what options you have. There are essentially three options: do it yourself divorce; traditional divorce (where each spouse hires an attorney to represent them); and collaborative divorce.
Do it yourself divorce – in which attorneys are not brought in the process – might be an okay option if there’s not a lot of debt or assets, and there are no children. The key is to make sure the parties are getting along. A lot of people try to do it themselves, but they realize there are a lot of issues that they don’t agree on. That lack of agreement usually leads to hiring an attorney to counsel them about how things are going to be done, how things are typically looked at, how to divide assets and time with children, and issues like that.
In a traditional divorce, one or both parties have an attorney. The attorney helps their party understand the issues in divorce, including division of income and assets, custody and visitation of children, child support, and spousal support. This can work out very well if you pick the right attorney who is able to work with the opposing attorney to come up with a solution that both parties can live with. Going to court is not typically a good option unless it’s absolutely necessary.
The third option is called collaborative divorce. In New Mexico, collaborative divorce is a process where the parties have essentially agreed that a divorce is going to happen, and they hire attorneys who are going to work closely with them as a group of four: the two parties and the attorneys. Rather than being adversarial, it’s a situation with four people around the table trying to work out a good solution together. It’s a very good option where there are complex assets and liabilities or a fair amount of assets.
Collaborative law is more of a team effort. It can be cheaper than traditional litigation if everybody’s on board and working together, and it can be a shorter process than litigation. If kids are involved, you will bring in a child psychologist who helps the kids get through the emotions of divorce and will also help the parents get through a lot of their emotions. Many of the bad feelings from the divorce are taken care of because you have a psychologist working with everybody throughout the process. Often a financial person will be brought in to talk about ways of dividing assets up appropriately; the financial person and the psychologist are neutral parties. Collaborative divorce can bring you to the culmination of this in a better place emotionally and sometimes less expensively.
So the three options are: do the divorce on your own; traditional divorce where you both hire an attorney to work towards a solution and if not, you go to court; or collaborative, in which both parties agree they’re not going to litigate, and that they will work things out without going to court.
Q: What can a divorcing person do to save time and money during the process?
Engelmann: The best piece of advice for saving time and money is to become educated. The process can be long, but the more you know about it, the better off you will be. Also, the more information you can gather and the more you have at your fingertips will take you tremendously far in the divorce process. For example, let’s say a client that comes in and his wife has managed all of the money in the marriage, and he doesn’t have any idea what she makes. He knows what he makes, but he doesn’t really know what comes in to the community. He doesn’t know what goes out; he doesn’t know what the credit card debts are. He doesn’t know what her student loans are. He signs off on tax returns, but never really pay any attention to them. It’s going to take this client a lot longer to get through the process because he’s going to have to educate himself first.
Do as much information-gathering as you can about the process, about your community, and about your marriage – especially the financial portion of the marriage. The more that you can do in advance or through the process by gathering that information and educating yourself, as well as providing information to your attorney, will save you a tremendous amount of time and money. When you can be proactive in gathering this information and passing it along to your attorney – rather than your attorney having to ask you for each piece of information – it will take you a long way, saving you time and money.
Q: Let’s talk about the situation where one spouse has decided that they want a divorce, but has not yet broken the news to other spouse. Is there anything they can do to prepare themselves before they sit down to have that conversation?
Matteucci: In situations where one party has decided to get a divorce and they’re contemplating how to tell the opposing spouse that they want to get a divorce, the best way of dealing with that issue is talking to your attorney before you talk to your spouse. An attorney can give you the information you need so when you broach the subject with your spouse, you can tell them what expect, how we’re going to proceed, and what we need to do to go through the process of getting a divorce. The attorney can give you information that sometimes leads to a better interaction with your spouse when you break the news. Also, you may want to meet with an attorney beforehand to find out what to do with your assets prior to letting your spouse know you’re going to pursue a divorce. It’s not an issue of hiding the funds by any means, but there are certain ways you might want to posture the assets so that they are taken care of properly during the divorce process.
If you meet with an attorney, you also may want to talk about whether you should approach your spouse in the house when the kids are there, or if you’ve already separated and are in separate residence, how to go about the process of communicating with the other person. Attorneys can give the party that is pursuing a divorce documentation that summarizes how to go through the process of getting a divorce, including pamphlets that they can give to their spouse. Also, if the party seeking a divorce wants to consider collaborative divorce, they should also get documents and pamphlets that they can give their spouse with information about collaborative divorce and a list of attorneys that practice collaborative law in the state of New Mexico.
It’s never an easy subject to bring up with your spouse, but sometimes it’s good to have your ducks lined up by talking to your attorney before about how to present the divorce process to your spouse.
Q: Let’s talk for a minute about do-it-yourself or online divorce. Can you tell us what some of the pros and cons of this kind of divorce are?
Matteucci: There are pros and cons for every option. In the State of New Mexico, about 60 to 75 percent of the people who go to court seeking a divorce are not represented; typically, these are people that either have very few assets or do not have children. Many times, couples have gone through the emotional process of getting divorced and are ready to compromise and write down exactly how they want to divide the assets and liabilities and all issues regarding children.
However, in cases where there are children involved, where the parties do not agree on a lot of issues, where there are a lot of assets and liabilities, or complex assets and liabilities, you typically want an attorney to take care of it for a whole host of reasons. Attorneys know the parameters of what you’re probably going to get if you go to court. Therefore, they can advise you, and why go to court if you already know what you’re going to get?
When you get a divorce on your own, there are so many issues you have to deal with and so many documents you have to put together and so many things you need to present to the court that divorce is almost like a full-time job. When you hire an attorney, they’re going to take care of those issues – and probably in a better way. They’ll also be able to tell you what issues you need to deal with and what issues you don’t need to deal with. The issue of getting an attorney can be a time versus money thing. If you do it on your own, it’s going to be almost a full-time job; if you hire an attorney, you have to pay them, but they’re going to get things done more efficiently and more accurately. Accuracy is really important. Not only can good attorneys make sure that the divorce process is quicker and more efficient without going to litigation, but they make sure that the documents you file with the court are accurate.
When parties decide to do divorce on their own and they do the paperwork, they often end up in court a year later, or at retirement, because the documents are not done right and there are questions about who gets what part of retirement or another asset. Or six months later there may be a dispute about where the children will spend the holidays because they didn’t file that properly. The divorce drags on, because the documents filed in court were not explicit enough to communicate to the court or to the parties about how things are supposed to be.
There have been many times when clients have come in and they’ve already received a divorce, but it was written so poorly that we had to go back to court and litigate over provisions that were put in those documents improperly – whether it was about the children or money.
There are times when attorneys are not needed; it just depends on the facts of the divorce.
Q: In the case of a do-it-yourself divorce where someone has signed either a very bad or very unfair agreement, do they have recourse to go to a lawyer and have that changed? Or are there circumstances where they’re just stuck with the bad deal forever?
Matteucci: When you want to change the provision in a divorce document, whether it be a parenting plan for children or the marital settlement agreement regarding assets and liabilities, it’s incredibly hard to do and most courts are not going to allow it. If it’s an issue of clarification because, for example, there was no provision in there about vacations for the children, you can try to work it out with the other party or litigate about what happens on vacations, or in the summer, or when the children are in high school and get a car. If it’s not spelled out in an agreement, you can go to court and say we didn’t do our homework or we forgot about this.
However if there is something in the divorce documents that is unfair and it’s spelled out specifically, going back and changing that is almost impossible.
It can be changed in certain situations. For instance, if one of the parties had a community asset and they didn’t mention it in the marital settlement agreement, you can go back and say that there was an asset that he or she did not claim that needs to be divided. If it explicitly says in the document what was supposed to happen to an asset or liability, however, going back to modify it is almost impossible.
If the party wants to modify the Parenting Plan, the Final Decree, or the Marital Settlement Agreement, both parties have to agree to the change. Unfortunately, both parties usually are not going to agree to a change. However, if they decide to agree to a change, it’s got to be filed with the court with the same formality as the divorce documents: it has got to be formalized, notarized, and filed with the court stating that the parties agreed to make this modification and have their signatures and the notification.
If it was on a very small issue like deciding on Christmas and both parties agree, you don’t necessarily have to go to court. However, if it’s an important point about any of the major issues, you definitely want it to become a court order so the other party can’t come back a year later and say that it was a verbal agreement or we didn’t sign anything or we signed something but it wasn’t notarized or filed with the court.
Going back and modifying a divorce document is very tough. However, in the areas of spousal support, child support, and child visitation, either party can petition the court to modify the prior agreement – not a month later, but typically a year or two later when there has been a substantial change in circumstances regarding the kids.
Q: What are the medical insurance options available for someone who was previously insured on their spouse’s policy?
Engelmann: In New Mexico, a spouse who was previously insured on their spouse’s policy will remain on that policy, throughout the duration of the divorce. In New Mexico, the courts issue what’s called a temporary domestic order. The temporary domestic order will prevent anybody from dropping any other parties throughout the divorce from insurance. It also has other protections, but specifically for medical insurance, you can’t drop somebody from insurance while the divorce is pending.
During the divorce, both of the parties will continue to be covered under whatever plan was in place prior to the divorce action beginning. Once the divorce is finalized, that spouse that’s on the other spouse’s insurance provided through employment will need to find his/her own insurance. It’s often a very big part of the settlement discussions to make sure everybody is going to be covered post-divorce as well.
The same applies for children. If the children are covered under the husband’s health insurance, for instance, he cannot drop the children from his health insurance. Everyone will be protected during the divorce – but you should consider what your options are post-divorce as part of the settlement.
Q: What is a deposition and how can someone prepare for it?
Matteucci: A deposition is when a party or a witness testifies or is interrogated by the opposing attorney not in court. The opposing attorney will ask to depose the opposing party or somebody else that’s going to be a witness in the case and bring them into either their office or a neutral office where they will ask questions. It is taking the testimony of somebody, but not in court. The questions and answers will all be recorded and eventually transcribed into a document that will specifically state all of the questions and answers. That document can be taken to court and when they put that person on that stand, they can ask the same questions to see if that party is going to change their answer. If that party changes their answers, then the deposition can be brought out to the court to show that they gave different information in a prior deposition.
Depositions are taken for two reasons. The opposing attorney wants to know what that person is going to say before they walk into court. The second reason is to see if they can get that witness or the party to misspeak or say something different the second time, pointing out that that person is not telling the truth about a certain subject or that they’re not believable.
To prepare for a deposition would probably be the same preparation process that you go through before a hearing or a trial. You dress professionally and you’re going to meet with your attorney beforehand. Your attorney is going to talk about how he wants you to answer questions: whether you should talk for a long time or just give yes or no answers with short explanations. Preparing for the deposition can take 15 minutes or can take two or three hours, depending on the situation. Meeting with your attorney is very helpful so that you will know how to answer the questions in the deposition. All the rules of law that the parties have to adhere to court are also the same rules that are followed in a deposition.
Q: How can someone prepare themselves for their day in court?
Engelmann: The best way to prepare yourself for your day in court is to set up a meeting with your attorney, but it’s likely your attorney will ask for this anyway. At least a day before, meet with your attorney and talk about what the process is going to be like.
When you go to court, you might have 30 minutes where you as a client just stand there or the attorneys will make some arguments and things might get decided – unless it’s an evidentiary hearing, in which case you might actually have to testify. Depending on the length and intensity of the hearings, you’re certainly going to want to meet with your attorney to prepare. Your meeting may need to be a little bit longer if there’s more that you’re going to talk about that day.
Another way to prepare is to talk to other people. If you haven’t been in court, talk to people who have. My best piece of advice for preparing for court is to defer to your attorney; they’ll know what’s best. If you have that trusting relationship, then you’ll trust them to do what’s best for you in court.
Going to court is a very nerve-wracking experience. Just take a deep breath, relax, and remind yourself that you’ve hired somebody you trust and they are going to have your best interest at heart. In the hearing, just allow them to do their work and you’ll feel good about it in the end.
Q: What should a divorcing person wear to court? Do you have any tips for men and women to present themselves in a good light?
Engelmann: The best thing to think about when you’re going to court is how you can appear the most respectful of the court and the judge. You don’t want to show up with jeans with holes in them and paint all over your hands if you were painting your house, for example.
For women, I suggest dressing comfortably. Don’t feel like you have to wear a skirt when you go to court, but you can if that’s how you dress. For men, I also recommend dressing comfortably. I would suggest business casual is probably the best way to dress in New Mexico. Also, it’s okay to wear what you were wearing to work. If your hearing is at ten o’clock in the morning, and you went to work as a nurse and you’re taking time off in the middle of your work-day to come to a hearing, then it’s okay to wear your scrubs to court. It’s okay to show the court that you’re a working person. They’re not going to give you a hard time and they’re not going to look down on you. The court understands that people work and are often taking time off in the middle of their day to come, so it’s okay to wear work-specific clothes to court if you have to.
If your work lends itself to being very dirty and maybe having jeans with holes in them, I might suggest throwing on something a little cleaner. However, the court is likely not going to hold that against you. If you don’t have the time to change, do your best. I would strongly encourage everybody not to wear any sort of t-shirts with logos, certainly if it has reference to alcohol and drugs – that would the worst thing you could wear to family court. Generally, business casual or whatever you wear to work would be just fine.