FAQ Series 1

What’s the difference between physical and legal custody?

New Mexico recognizes two types of custody: physical and legal. Physical custody simply means who has physical control of the child; that is, where the child sleeps at night. Oftentimes, there is a primary physical custodian of the child, which means one parent has the child more than 50% of the time. Joint physical custody doesn’t mean that the parents have equal timesharing, but that both parents have timesharing with the child.

Legal custody is the decision-making power for the child. In New Mexico, there is a presumption of joint legal custody. Under joint legal custody, both parents have to agree on any major decision for the child. These include, but are not limited to, what school the child attends, who the pediatrician/dentist/therapist is, what extracurricular activities the child will participate in, what religion the child practices, and any major medical procedures. If the parents can’t come to an agreement, the parent requesting the change or decision cannot make the change or decision.

How do I know if my attorney is a good fit for me?

Choosing an attorney to represent you in a divorce or custody case is a major decision. Here are some questions to consider before selecting an attorney. Do you feel comfortable with the attorney? It’s extremely important that you are able to share all the details of your case with your attorney so he/she can better represent you. Do you trust your attorney? Similar to the previous question, you need to be able to fully trust your attorney to act in your best interests. What is your preferred communication style? Some attorneys communicate primarily over the phone and some prefer email. Identify which style you respond best to and make sure everybody is on the same page. At the end of the day, if you aren’t comfortable sharing intimate details of your case with your attorney, he or she is probably not the best fit for you.

What’s the difference between legal separation and dissolution of marriage?

There’s one massive difference between legal separation and divorce: even with a Decree of Legal Separation, you are still legally married and the marriage has not been dissolved. A divorce dissolves the marriage, divides all property and assets, addresses custody if applicable, and allows each party to remarry. A legal separation divides the property and assets, addresses custody if applicable, but does not dissolve the marriage. Neither party can marry anybody else. Legal separation can be used if the parties do not meet the jurisdictional requirement of residing in New Mexico for six months, if one party needs to keep the other on health insurance for medical reasons, or if there are religious objections to a divorce. Both a dissolution of marriage and legal separation are good options to know about, but a dissolution of marriage is the only mechanism to permanently end the marriage and sever the legal relationship.

When divorcing a spouse, should I tell them I hired an attorney before they are served with divorce papers?

I often advise my clients to inform their spouse in advance that they have hired an attorney and provide a timeframe during which they should expect to be served.  Some spouses have already separated and are no longer living together, so this information will come as less of a surprise.  While others may still be living with their spouse.  Either way, starting the dissolution process by being upfront can reduce the conflict during the process and also allows the spouse to have time to prepare themselves emotionally so that they are not blindsided which can often result in feelings of anger.  There are of course situations where this is not the best way to proceed and that is something potential clients should discuss with our attorneys during an initial consultation.

How long will my divorce take?

It is very difficult to predict exactly how long the dissolution proceed will take.  Some cases are opened and closed in less than thirty days while others go on for much longer.  The average length of the process tends to be between six months and a year depending on the amount of litigation required.

Does it matter who files for divorce first?

New Mexico is a no fault divorce state.  Therefore, in a dissolution of marriage proceeding neither party is required to make a showing of wrongdoing by the other.  In that sense it really does not matter who files first.  That being said, filing first assures that the process has begun and allows you to begin preparing your case to move forward.