Nm Family Law

Front 1

Can a plantiff bring an action in NM for breach of promise to marry?

Back 1

Breach of promise to marry is not actionable. Heart-balm statues abolished in NM.

Front 2

What happens to gifts in contemplation of marriage if marriage does not occur?

Back 2

Engagement rings and such are considered conditional gifts. If marriage does not occur, gift in contemplation of marriage reverts back to the donor.

Front 3

Prenuptial Agreements defined

Back 3

Premarital Ks are valid in NM. They provide for distribution of property upon divorce or death in a manner that is different from what the law would typically require. They’re generally enforceable, and they’re not void against public policy.

Front 4

Requirements for validity of a prenup (8):

Back 4

(1) They must be conscionable (fair)

(2) In writing, signed by both parties

(3) Full and fair disclosure

(4) Capacity

(5) No duress

(6) No fraud

(7) No overreaching

(8) Independent counsel may also be a factor

Front 5

Prenuptial agreement upheld unless:

Back 5

(1) Duress, fraud, or misrepresentation (basic contract principles)

(2) Lack of meaningful choice in the creation of the agreement

(3) Lack of full and fair disclosure of financial assets

*Reasonableness of the agreement is not relevant.

Front 6

Marriage defined

Back 6

Creation of the legal status of husband and wife

Front 7

NM limitations on marriage

Back 7

Cannot get married in NM if:

i) Underage

ii) Too closely related

iii) Same sex

iv) Lack mental capacity (mc means you comprehend and are voluntarily entering into the marriage)

v) Lack of physical capacity (ability to consummate the marriage)

vi) Can’t be married if committing bigamy (marrying one person while still married to another person) or polygamy (having more than one spouse at one time)

Front 8

NM Procedural Requirements for Marriage (2):

Back 8

i) License required

ii) Ceremony (clergy, civil officers empowered to administer oaths)

Front 9

State of mind requirements

Back 9

i) Capacity to consent

ii) Intent to get married

Front 10

Common Law Marriage defined

Back 10

i) Consent
ii) Capacity
iii) Holding out publicly as husband and wife

Front 11

Common law marriage and CL divorce in NM

Back 11

THERE’S NO COMMON LAW MARRIAGE IN THE STATE OF NM.

However, if couple moves from CL state to NM, NM will recognize CL marriage.

There is no CL divorce, either. Couple has to go through full court process to get divorced.

Full faith and credit in a marriage, valid where celebrated, is recognized as valid by other states and must be formally dissolved in order to assert any claims against the other spouse.

Front 12

Responsibilities of spouses

Back 12

i) Each party has a fiduciary duty to the community

ii) Duty to support each other

iii) Duty to pay the other spouse’s obligations

Front 13

Rights of each spouse

Back 13

i) Spouses can keep their last names

ii) Can sue other spouse

iii) Can procreate, use contraception, and abort

iv) Can refuse to testify against other spouse

v) Can refuse to disclose communication between spouses

vi) Can sue third party for tortuous interference with marital relationship

Front 14

Rights of the Family as a unit

Back 14

(1) Right to privacy,

(2) Right to live together if they’re related,

(3) Right to educate children outside public schools

(4) Right to determine appropriate care, custody, and control of their children

* It’s a matter of public policy for the law to interfere as little as possible with the family

Front 15

Family Violence Protection Act

Back 15

Acts of domestic violence are governed by the Family Violence Protection Act.

(1) In order to file a claim under the FVPA it must involve a family member (a bf/gf also applies).

(2) Ex parte Party goes to DV division, if court finds probably cause, an ex parte order will be issued which lasts about 10 days.

(3) Once order expires, parties go to hearing. If ct determines there was abuse, a long-term restraining order will be issued. Parties may also stipulate to get that long-term RO before hearing and court will issue it.

Front 16

Three ways to terminate marriage in NM:

Back 16

i) Annulment

ii) Divorce

iii) Legal separation

Front 17

Annulment

Back 17

A declaration that a marriage is invalid because it's either void or voidable.

Declaration of invalidity can be sought any time prior to the death of the parties.

Front 18

Void marriage

Back 18

As if the marriage never existed for any purpose because it was illegal or prohibited

(1) Bigamy (prior existing marriage)

(a) Disappearing spouse: 7 years gone = presumed dead
(b) Before 7 years = get a decree of presumed death

(2) Incest: any blood relative except cousins

(3) Violation of local statues

Front 19

Voidable marriage

Back 19

One of the spouses can bring action to declare marriage invalid w/i certain statutory time limits because of the impediment that existed at the time of the marriage. This includes:

(1) Underage

(2) Incurable physical impotence

(3) Lack of understanding (i.e., mental incapacity or intoxication)

(4) Lack of mutual assent or duress

(5) Fraud: where one spouse lies about a material aspect of the marriage
(a) Misrepresentation of religious matters
(b) Misrepresentation about matters of sex or procreation
(c) Misrepresentation of money matters does NOT constitute fraud
(d) Wife fails to disclose pregnancy by someone other than husband
(e) Conceal existence of venereal disease or drug addiction
(f) Spouse had no intention to fulfill duties of marriage

Front 20

Difference Between Void & Voidable

Back 20

(1) Void marriages are a legal nullity but you should still get an annulment (even though you don’t need one); Voidable marriages need an annulment to end the marriage

(2) Defect that makes the marriage void cannot be waived; defect in voidable can be waived

(3) Third party can collaterally attack void marriages; voidable marriages can only be challenged by a spouse

Front 21

Full faith and credit re: divorce

Back 21

Valid divorces from other states are recognized in NM based in full faith and credit.

A divorce decree obtained in one state is recognized as valid in other states as long as one of the parties was domiciled in the state that granted the divorce.

For other provisions regarding alimony, child support, atty fees, and property rights, to be given full faith and credit the ct must have had personal jurisdiction over respondent.

Front 22

NM recognizes 4 grounds for divorce:

Back 22

(1) Incompatibility (NM is a no-fault state)

(2) Abandonment

(3) Cruel and inhuman treatment

(4) Adultery

Front 23

NM Divorce Procedure

Back 23

(1) Court must have jurisdiction

(2) One spouse must be domiciled in NM (intent to stay and physical presence)

- π spouse must reside in NM for at least 6 months before the filing of the divorce

(3) π spouse must give adequate notice to Δ spouse of the proceedings- through personal service, waiver of service (signed by Δ spouse), or by publication. Certificate of service must be filed with court.

(4) Both parties can sign a joint petition for divorce, thus becoming co-petitioners.

Front 24

Legal separation

Back 24

The same to a divorce in all aspects, except:

(1) Marriage itself is not terminated

(2) Parties are not free to remarry

(3) Petition is called Verified petition for legal separation

(4) Decree is called final decree of legal separation

(5) Spouse retains right to inheritance, benefits, pension

* Property, debts, custody issues, are resolved in the same way as a regular divorce

Front 25

Two types of property that need to be divided in the course of a divorce:

Back 25

(1) Community property, and

(2) Separate property

Front 26

Community Property

Back 26

Community property: everything acquired SUBSEQUENT to date of marriage, but prior to date of final divorce decree. This includes:

i) Real estate

ii) Bank accounts

iii) Pensions and sharing plans, 401K

iv) Business or professional practice values

v) Life insurance

vi) Disability pay

vii) Worker’s Comp awards

viii) Value of spouse’s labor

ix) A lawsuit settlement award acquired by a spouse during the marriage is considered community property
(1) Damages for pain, mental anguish and loss of consortium from an injury suit are separate property, but damages for loss of wages and for medical bills are community property.

x) Crops grown on separate property and livestock born during the marriage are community property, except personal injury damages.

Front 27

Separate Property

Back 27

(1) Anything acquired before marriage or

(2) Acquired during marriage by one spouse as a gift, bequest, or inheritance

(3) Property declared “separate” by joint agreement or by court order

(4) Personal injury proceeds are separate property.

Front 28

How to determine Community vs Separate Property

Back 28

ASK:

(1) Time—before, during, or after the marriage

(2) Manner- how did they get it? Inherited, bought, gifted, or exchanged?

Front 29

Transmutation

Back 29

Transaction between spouses which chances the character of property from separate to community or vice versa. It may occur by either a gift to the community, quit claiming, or comingling.

Front 30

Commingling

Back 30

Process by which separate funds or assets are combined w/ community funds or assets so that the original funds or assets can’t be traced by operation of law. (e.g., taking inheritance $ and deposit it into community bank account and that $ was then spent for stuff for the community)

Front 31

Tracing

Back 31

Accounting method whereby assets acquired w/ community and separate funds can be characterized and apportioned.

Front 32

Equitable Liens (EL)

Back 32

Occurs when community property is invested in separate property or vice versa, funds can be traced, and there’s no transmutation. EL may be for amount of funds or equitable share of property.

Front 33

Joined tenancy

Back 33

Creates a rebuttable presumption of a gift to the marriage. Title of properties is not determinative

Front 34

Suggested Analysis of a Community Property Question

Back 34

(1) ID type of property: Separate or Comm. Prop?
-Remember that all Comm. Prop in the state of NM is divided equally (50-50)

(2) Value each property

(3) Determine if commingling occurred

(4) Determine if transmutation occurred

(5) Has separate property been improved by marital funds or labor of the non-owning spouse?

(6) Was property acquired prior to marriage but paid for after marriage?

(7) After stating law, break down each spouse’s asset with its value (if there’s no value listed, mention that).
- Argue both sides
- Mention that "NM is a community property state. This means that …"

Front 35

Two criteria to qualify for alimony (aka spousal support, maintenance, etc.):

Back 35

(1) Must demonstrate NEED (insufficient property to care for his/her needs)

(2) Ability to pay means inability of one spouse to support him/herself through appropriate employment AND the ability of the paying spouse to pay alimony.

Front 36

Determination of Alimony

Back 36

Determined on a case-by-case basis. Elements NM considers to determine if a maintenance award is appropriate are:

(1) Age
(2) Health
(3) Means of support of each spouse
(4) Current or future earnings
(5) Earning capacity of each spouse
(6) Good faith efforts of spouse to obtain/maintain employment or to become self-supportive
(7) Need
(8) Duration of marriage
(9) Liquid and non liquid assets
(10) Debts
(11) Prenuptial agreements

* There’s no marital misconduct as a factor in alimony award

Front 37

Automatic termination of alimony (unless it’s stated clearly otherwise)

Back 37

(1) Death of either party

(2) Remarriage of recipient

Front 38

Transitional maintenance

Back 38

Short term exchange of money, usually to help w/ adjustment from being married to single.

Front 39

Rehabilitative maintenance

Back 39

To rehabilitate one of the spouses. It includes a specific plan, specific budget, and usually done for education/vocational purposes.

Front 40

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Back 40

NM has adopted the UCCJEA re child custody matters

Front 41

Initial custody determination under the UCCJEA

Back 41

The home state of the child has original and continuing jurisdiction. The “home state” is where the child lived 6 months prior to the filing of the divorce. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence is irrelevant.

If the child has no “home state,” a court may use a state where either parent has a significant connection to a state, and where substantial evidence concerning the child is available in the state.

Front 42

Continuing Jurisdiction under the UCCJEA

Back 42

Once a state court has made a custody determination, that state keeps jurisdiction over all matters concerning that child, unless:

1. A court of the state with jurisdiction determines that the child or the child and a parent do not have a significant connection with the state, AND evidence concerning the child's custody determination is not available in the state;

2. A court of the state with jurisdiction, or any other state, determines that the child and both parents or acting parents do not reside in the state any longer.

- For an example of #1, the parents divorce in NM, and mother and children move to Mississippi. The father continues to live in NM and the children maintain a significant connection to NM by visiting NM often and spending their summers there. Three years later father files suit in NM to modify custody. The mother attempts to transfer jurisidiction to Mississippi. NM should not relinquish jurisdiction to Mississippi.

- For an example of #2, parents divorce in Texas, mother and childre

Front 43

Modification of custody determination under the UCCJEA

Back 43

Once a custody determination has been made, a court of another state does not have authority to modify the determination, unless the state with jurisdiction determines that it does not have jurisdiction as noted above, or any state court determines that the child, parents, and any acting parents do not reside in the state which currently has jurisdiction.

Front 44

Emergency orders

Back 44

Temporary emergency jurisdiction granted only in severe instances if abandonment or abuse.

In order to enforce :
- Register order
- Expedited enforcement in habeas type proceedings (is order valid and is petitioner entitle to custody?)
- Warrant to take physical custody of child
- Law enforcement officials would be enlisted to retrieve child

Front 45

Legal Custody

Back 45

Legal custody has to do with right to make major decisions related to child’s life. Usually dealing with child’s residence, education, religion, medical care, and recreation. Joint legal custody—both parents make decisions. However, parent hostility may preclude joint custody award. There’s a presumption in NM that parents should have joined legal custody.

Front 46

Physical Custody

Back 46

It deals with actual possession and control of the child or time-sharing. Most appropriate when: (1) both parents are fit and both agree, (2) both can communicate and cooperate; (3) child prefers joint custody; (4) both parents involved in child’s life; (5) both parents’ in close in proximity; (6) both homes are relatively similar; (7) joint custody does not negatively affect child’s development, (8) both parents can carry out JC order.

Front 47

Standard for child custody award (W.I.S.H)

Back 47

Best interests of the child:

(1) Wishes of child and the parent. 14 years old child or +, Ct. will consider what child wants, but retains discretion.

(2) Interaction and integration of child into home and community. Who is primary caregiver?

(3) Sharing the upbringing and decisions related to the child. Can parties properly share the child?

(4) Health (mental and physical) of the parties

Front 48

Visitation Rights of Non-custodial Parent in NM

Back 48

Will ALWAYS have the right to visitation UNLESS visitation would threaten the welfare of the child.

Custodial parent cannot withhold visitations for lack of pay of child support.

Front 49

Visitation Rights of Grandparents in NM

Back 49

Generally, grandparents do NOT have a right to visitation. However, courts may grant it when:

(1) Not in conflict with child visitation or time sharing privileges.

(2) Best interest of the child

(3) Prior interaction of child and grandparent

(4) Present interaction of child’s parents w/ grandparent

(5) Prior visitations arrangement

(6) Grandparent does not have prior convictions of physical, emotional or sexual abuse or neglect child abuse, etc.

Front 50

NM Guidelines re: Child Support

Back 50

Both parents share a duty to support the child. CS ends upon child’s death or emancipation (usually means through high school). CS cannot be included as income or deducted from income for tax purposes. Based on Child support guidelines. Consider following factors:

• Gross income of both parties
• Time sharing arrangement
• Number of children
• Any extraordinary expenses

Front 51

Child Support Enforcement

Back 51

(a) Seize property and sell to satisfy the payment

(b) Garnishment of wages

(c) Lose driver’s license

(d) Criminal contempt of court

(e) Interception of tax refunds

(f) Uniform Interstate Family Support Act: All states must defer to child support orders entered in child’s home state

Front 52

Modification of custody order/child support

Back 52

(1) Substantial change in circumstances and

(2) Best interests of the child is served (look for stability and continuity: don’t modify too often)

(3) 20% upward or downward for modification of CS

(4) There’s no retroactive modification of CS

Front 53

Same sex marriage

Back 53

Not valid in NM