Read the transcript of this video below.
The dissolution procedure begins by one of the parties filing a Petition for Dissolution of Marriage. This Petition notifies the Court that the parties are planning on ending their marriage. Most Petitions are filed on the grounds of incompatibility. Incompatibility means that because of discord or conflict of personalities, the legitimate ends of the marriage relationship are destroyed – preventing any reasonable expectation of reconciliation.
The Petition alleges the ground for the dissolution, whether the parties have community assets and liabilities, whether they have separate assets and liabilities, whether they have minor children and what form of custody the Petitioner is requesting, and sets out if spousal support or child support may be due to one party from the other. It can be filed by either party.
Once filed, the other party is served with the Petition; the other party has 30 days to respond to the Petition. Under the rules of discovery, interrogatories ask the recipient questions, and the lawyers can exchange Requests for Production of Documents, which ask for specific documents. Sometimes, a deposition where a party is placed under oath and asked questions before a court reporter takes place. Sometimes, the deposition process is informal – but more often, it is formal, so the responses are under oath.
In the meantime, how the parties are going to support themselves and service their assets and debts until the marriage is dissolved is at issue because each party’s earned income is community property. If the parties have separate income from, let’s say, a trust or a retirement he or she had prior to the marriage, the court might also divide the separate income. Each party fills out a worksheet that shows income, deductions, and fixed expenses, such as the house payment, if one party moves out, his or her rent, utilities, insurance payments, car payments, minimum credit card payments, and other expenses. If there are minor children, an interim amount of child support is set based on guidelines.
Once they have sufficient information, the parties then start negotiations aimed toward settling the matter. In many districts in New Mexico, there is mandatory mediation or facilitation. Sometimes, counsel (or the parties) meet and see if agreements can be reached. If full settlement is reached, then the parties will sign a marital settlement agreement resolving their issues and a final decree is prepared, adopting those agreements for presentment to the court. If there are issues related to children, the resolution of those issues are set forth in what is called a parenting plan – which may be part of the settlement agreement or may be a separate document. The parenting plan will set out the form of custody and the decision-making responsibilities between the parents, must specify timesharing of the children between the parents, and address child support.
The courts have to accept what the parties agree to as to their property but do not necessarily have to accept the parties’ agreements as to custody, or spousal or child support arrangements. Usually, the parties’ agreements to those areas are accepted if they are not impractical. If settlement negotiations do not conclude with a full agreement, then those items not agreed to will be set for trial before a judge.
Once the issues are resolved, a Final Decree of Dissolution is issued.
Jon Feder is a shareholder with Atkinson & Kelsey practicing in divorce and family law including state planning and probate. He has practiced family law for more than 30 years and is a frequent lecturer before various groups regarding family law and divorce taxation. Mr. Feder is recognized as a family law specialist by the New Mexico Board of Legal Specialization. He has been court appointed mediator or facilitator in family law cases and has acted as a special master. For more information about Jon A. Feder and his firm, please visit www.atkinsonkelsey.com.