Frequently Asked Questions

You may have many questions about family law, including questions about divorce, child custody, spousal support, property division, and more. We created a list of some of the most frequently asked questions below. If you have questions on topics not shown here, please do not hesitate to call our law office now.​

Is a Restraining Order the same thing
as an Order of Protection?

Short answer: no. However, there is a lot of confusion between the two. When researching this, nearly every legal site used the terms “restraining order” and “Order of Protection” interchangeably, so it’s no wonder!

A restraining order (RO) is a civil remedy that requires the restrained party to do something or stop doing something. It’s sometimes called an injunction. Anybody can ask a court for an RO; you just have to show that you will be harmed in some way if the injurious behavior continues. 
To file for an RO in New Mexico, you open a civil lawsuit and pay the filing fee and the service of process fees (if applicable). New Mexico allows ROs in nearly every conceivable situation: there are water ROs, financial ROs, property ROs, animal ROs, and yes, even ROs wherein the applicant is alleging that s/he is being physically threatened by someone.

But an RO is not an Order of Protection (OP); and here are the differences. First, and most important, the OPs we have today are a result of the Violence Against Women Act, a federal law that helped standardize OP requirements, so that when those requirements are met, the OP is valid and enforceable in any state, tribal land or territory of the United States. 

Second, a person asking for an OP must be a household member, a co-parent, and/or current or former intimate partner of the person from whom she needs protection. A person who is a victim of sexual assault or a person who is being stalked may also file for an OP, even if s/he had no prior relationship with the offender.

Third, filing and service fees are free for OPs. 

Fourth, an OP must have an expiration date, whereas ROs can be “permanent.”

And fifth, OPs are fully enforceable by law enforcement. If you have an RO against someone and his bad behaviour continues even after the court entry of the RO, your sole legal remedy is to file what’s called a Motion for an Order to Show Cause against him. If you call the police to report his behavior, the police can’t do much except to tell you to file the motion. Getting a hearing on your Motion for Order to Show Cause can take months.

However, if an offender violates an OP, the victim should call 911 for immediate police help. A hearing alleging violation of the OP is then set fairly quickly (within a couple weeks) and the judge hearing the case can impose both civil and criminal penalties against the offender.

And one more thing: courts can also issue “no-contact” or “stay away” orders as part of other legal proceedings, but these are NOT Orders of Protection. Police will not enforce them. Like ROs, they must be enforced by motions for orders to show cause. The most common abuse I see in family court proceedings is when the offender’s attorney convinces an unrepresented victim of domestic violence that she should drop her OP and agree to add a “stay away” paragraph in the divorce petition. PLEASE do not fall for that! It is nearly unenforceable, and is offers none of the legal protections of an Order of Protection!

​For questions about Orders of Protection, keeping safe, and domestic violence, please call us at 505.242.2835. 

Is a this Situation Causing Lasting
​Damage to My Children? 

Early trauma in children can lead to lasting damage.

According to a report from Reuters.com, traumatic early-life experiences, such as the loss of a loved one, abuse, and/or divorce can cause changes in brain structure that increase a child's risk for anxiety or depression later on, according to a new study out of Duke University.

Scientists followed nearly 500 mothers and their sons from pregnancy until the boys reached adulthood. The mothers answered questions about 37 types of adversity their children faced at home before age 6. The mothers also reported symptoms of anxiety or depression their sons developed by the time they were 7, 10, and 13. Brain scans performed on the boys between 18 and 21 suggest that facing more forms of hardship early in life is associated with lower volume in parts of the brain involved in emotion, decision-making, empathy, and self-awareness.

Duke University researcher Jamie Hanson said, "Research suggests that the experiences early in life really matter, especially before the age of 5."
​
I worry about what this study might suggest for children in foster care.​

For questions about minimizing the effect of your situation on your children, please call us at 505.242.2835. 

How Long Will it Take Me to Get Divorced?

​

​Not to sound like a lawyer here, but the answer is, it depends.

For an uncontested divorce – i.e. divorce where both parties agree on everything and draw up the necessary documents together – the answer can be as short as a week. However, if the parties aren’t cooperating (which is usually the case!), the divorce process will drag on. 

I was thinking about this last week after I mediated a divorce in Valencia County. These parties had no property, but there were complexities regarding the children and a long history of abuse, addiction and law enforcement involvement with the family. After allowing each party to vent, in the end, I was able to help them focus on what was in the best interest of the children; and once that happened, everything else fell into place. In less than one day, we completed a divorce that included debt distribution and a detailed time-sharing schedule. Total cost for their divorce: Zero.

Contrast this with a case I was involved in a couple years ago. I represented the wife in an Order of Protection matter. In discussing whether she would hire me for the divorce, I made clear that I saw no real issues, because their children were older teenagers; their house was in foreclosure; and there was no other property or debt, with the exception of the husband’s modest pension. I told her I could just contact the husband’s attorney and we’d decide which party would do the paperwork to divide the pension, and we could be done. She was horrified by this suggestion! She insisted that he be made to “pay” for everything she put up with during the marriage. She also said she did not want their girls to have any contact with him. I tried explaining that fighting about these things would be extremely expensive and had no reasonable chance of success. Neither she nor the husband could afford this; and no court order was going to heal the hurt from the years they were together. 

As you can guess, she chose another law firm for the divorce. I recently checked on the status of her case, however, and I see that she is STILL not divorced, after nearly two years! The legal fees by this time must be in the tens of thousands of dollars, which these parties can not afford - and all, in my opinion, for nothing. 

So back to the question of how long your divorce should take to be completed. I think the best predictor is whether you are able to resist the temptation to want to see your spouse punished. Believe me that in the end, 1. Your spouse won’t get punished and 2. The desire for retribution will drag out the divorce (and legal fees, if you have lawyers) into infinity. Put aside your hurt and do your best to get it done. Of course, your spouse has to work with you, too.

​It’s OK if you need help to do this – that’s what lawyers are for! Just make sure your case keeps moving forward. Anything else is a waste of time, money and spiritual energy.

For questions about getting a divorce, please call us at 505.242.2835.