Draft of Manual for Pro Se Litigants

Guide for= Pro Se Litigants (DRAFT)

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table of contents

I.&n= bsp; = ; Introduction . . . . . . . . . . . . . . . . . . . . = . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . &n= bsp; 3

II.&= nbsp; &nbs= p; Scope of Guide . . . . . . . . . . . . . . . . . . . .= . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

– NOTE: This Guide only covers certain typ= es of cases as outlined below. Specifical= ly, it does not cover criminal cases or complex civil cases.

III.=              Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .= . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        4

IV.&= nbsp;            Getting Familiar with Your Courthouse = . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             5

a.    Locations: Chaves, Eddy & Lea Coun= ty

b.     Security

c.     No Cell Phones Allowed=

d.    The Clerk’s Office

e.     The Courtroom

V.&n= bsp;            = ;   General Courtroom Rules and Etiquette . . . . . . . . . . . . . . . . . . . .= . . . . . . . . .     &n= bsp;     7

a.    Dress Appropriately
b.     No Food, Drink, or Gum Chewing Allowed

c.     Speak and Act Respectfully To the Judge<= o:p>

d.    Address the Opposing Party Through the J= udge, Not Directly

e.     Follow the Court’s Orders

f.      Do Not Discuss the Case with the Judge U= nless Opposing Counsel is Present

g.    Please Avoid Bringing Small Children int= o the Courtroom During Hearings

h.    Provide a Copy of Documents Filed With t= he Court to the Opposing Party

i.      = Get Help If You Are an Indigent Pro Se Litigant

j.      = Please Provide Advance Notice if You Wil= l Need an Interpreter

VI.&= nbsp;            Family Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .= . . . . . . . . . . . . . . . . . . . . . . . . . . . .         9

a.    Divorce, Child Custody, and Support . . = . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     9

&nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;     i.   &nb= sp;        Jurisdictional Requirements

&nbs= p;            &= nbsp;           &nbs= p;            &= nbsp; ii.   &n= bsp;        Reason for Divorce

=       =             &nb= sp;            =         iii.   &= nbsp;        Contested Versus Uncontested Divorce – This guide only cov= ers uncontested divorces

&nbs= p;            &= nbsp;           &nbs= p;            iv.   &n= bsp;        For an Uncontested Divorce, Use Internet Resources Available

&nbs= p;            &= nbsp;           &nbs= p;            &= nbsp; v.   &nb= sp;        Complete a Petition For Divorce=

&nbs= p;            &= nbsp;           &nbs= p;            vi.   &n= bsp;        Attend Mandatory Orientation – In Eddy County Only

&nbs= p;            &= nbsp;           &nbs= p;          vii.   &= nbsp;        Comply with the Temporary Domestic Order

&nbs= p;            &= nbsp;           &nbs= p;       viii.   =          Get a Temporary Restraining Order if Necessary (Optional)

&nbs= p;            &= nbsp;           &nbs= p;            ix.   &n= bsp;        Determine the Distribution of Property

&nbs= p;            &= nbsp;           &nbs= p;            &= nbsp; x.   &nb= sp;        Determine Child&= nbsp; Custody

&nbs= p;            &= nbsp;           &nbs= p;            xi.   &n= bsp;        Determine Child Support

&nbs= p;            &= nbsp;           &nbs= p;          xii.   &= nbsp;        File a Wage Withholding Order (Optional)

&nbs= p;            &= nbsp;           &nbs= p;       xiii.   =          Determine Spousal Support (Optional) <= /span>

&nbs= p;            &= nbsp;           &nbs= p;       xiv.   &= nbsp;        Request a Name Change if Necessary

&nbs= p;            &= nbsp;           &nbs= p;         xv.   &n= bsp;        Fill Out The Final Decree

&nbs= p;            &= nbsp;           &nbs= p;       xvi.   &= nbsp;        File All Required Forms with Clerk’s Office= and Set a Hearing

&nbs= p;            &= nbsp;           &nbs= p;    xvii.   =          The Court Has Continuing Jurisdiction over Child Custody and Support

b.     Domestic Violence . . . . . . . . . . . = . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      13

&nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;     i.   &nb= sp;        Get a Temporary Protection Order (TPO)=

&nbs= p;            &= nbsp;           &nbs= p;            &= nbsp; ii.   &n= bsp;        Attend the Hearing and Bring Evidence<= /span>

&nbs= p;            &= nbsp;           &nbs= p;             iii.   &= nbsp;        The Final Order

c.     Name Change . . . . . . . . . . . . . . = . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .= .        14

&nbs= p;            &= nbsp;           &nbs= p;            &= nbsp;     i.   &nb= sp;        File a petition and Schedule a Hearing=

&nbs= p;            &= nbsp;           &nbs= p;            &= nbsp; ii.   &n= bsp;        Publish Notice of Hearing

VII.=           Appeals from Magistrate and Municipal Co= urt . . . . . . . . . . . . . . . . . . . .= . . .        &= nbsp; 15

a.    File a Notice of Appeal with the District Court within 15 Days of Judgme= nt or Final Order from Magistrate or Municipal Court

b.&n= bsp;    Serve the Opposing Party with a Copy of the Notice of Appeal

c.&n= bsp;   File a Copy of the Notice of Appeal in Magistrate or Municipal Court

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      =              I.   &nb= sp;            =         INTROD= UCTION

In <= st1:place w:st=3D"on">New Mexico, it is a general rule that = pro se litigants must comply with the rules and orders of the court and will not be treated differently than litigants with counsel. In fact, as a pro se litigant, you= will be held to the same standard as attorneys are, even though you may not have been through three years of law school or have taken the New Mexico Bar Examination. However, the law= is typically so complex that even trained lawyers struggle to find the answer. Therefore, pro se lit= igants often have a difficult, up-hill battle when they choose to represent themselves. This guide provid= es some general information you need to know to represent yourself in court in= the Fifth Judicial District of New Mexico.

      =           II.   &n= bsp;            = ;        SCOPE<= o:p>

First of all, this guide is specific to the rules and procedures of the Fifth Judicial District courts = of New Mexico. The Fifth Judicial District includ= es Chaves, Eddy, and Lea counties. Please note that other judicial districts around New Mexico may have adopted their own = local rules that are different from the local rules of the Fifth Judicial District. Thus, this guide on= ly applies to pro se litigants involved in a case in state district court in C= haves, Eddy, or Lea County. Furthermore, this guide does not p= rovide help to pro se litigants who choose to appeal their case to the New Mexico Court of Appeals or the New Mexico Supreme Court.

Second, this guide only cov= ers limited types of cases and is not intended to cover all areas of the law. In the Fifth Judicial District, th= e most common area of the law in which people choose to represent themselves is fa= mily law. Therefore, this guide ex= plains the rules and forms required for preparing and presenting certain types of domestic affairs cases, such as divorce, child custody, child support, and domestic violence. This guide= is intended to cover the more simple matters of the law, for which people freq= uently chose to forego the cost of hiring a lawyer and handle themselves. Accordingly, this guide does not c= over criminal matters or complex civil cases.&n= bsp; If you have a question not covered by this guide, please consult an attorney or go to www.nmlegalaid.org= to find a Legal Aid office or attorney in your area.

   &nbs= p;        People often choose to represent themselves in magistrate or municipal court. If you are dissatisfied with the f= inding of the lower court, you may appeal to district court. This guide will also provide the r= ules stating how and when you may appeal from magistrate or municipal court.

   &nbs= p;        Lastly, this guide will refer frequently to three important resources where much of= the information below may be found online: (1) www.nmcourts.gov, which is the website for the Judicial Branch of New Mexico, (2) www.supremecourtlawlibrary.= org, which is the website for the law library of the New Mexico Supreme Court, a= nd (3) www.fifthdistrictcourt.c= om, which is the website of the Fifth Judicial District of New Mexico. Pay specific attention to the sect= ions below that discuss these websites, as they include many of the forms you wi= ll need and instructions on how to fill the forms out. If you do not have access to the i= nternet from your home, you may get online at your local library.

DISCLAIMER:<= /p>

PLEASE NOTE THAT THE INFORMATION CONTAINED IN THIS GUIDE IS GENERAL IN NATURE. IT IS NOT LEGAL ADVICE. FOR MORE SPECIFIC QUESTIONS, CONSU= LT AN ATTORNEY.

      =        III.   &= nbsp;           &nbs= p;        GETTING FAMILIAR WITH YOUR COURTHOUSE

Of course, every courthouse= is designed differently. However= , a few general rules will help you find your way around.

A. Locations. The Fifth Judicial District has three district courthouses, depending on where your case may be filed. Each courthouse location and its contact information, which may also be found on= www.fifthdistrictcourt.com,= are as follows:

Chaves Co= unty Courthouse

Located at: 400 N. Virg= inia, Roswell, NM 88201

Send Mail to: P.O. Box 1776, Roswell, NM 88202-1776

Roswell Court Admin.: 575-622-2565<= /p>
Court Admin. Fax: 575-624-9= 506

Roswell District Clerk: 575-622-2212

Roswell District Clerk Fax:= 575-624-9510

Eddy Coun= ty Courthouse

Located at: 102 N. Canal, Carlsbad, NM 88220

Send Mail to: 102 N. Canal, Suite 240, <= st1:City w:st=3D"on">Carlsbad, NM 88220

Carlsbad District Clerk: 575-885-4740

Carlsbad District Clerk Fax= : 575-887-7095

Lea Count= y Courthouse

Located at: 100 North Main,= Lovington, NM 88260

Send Mail to: Box 6-C, Lovington, NM 88260

Lovington District Clerk: 575-396-8571

Lovington District Clerk Fa= x: 575-396-2428

In each courthouse are the district judges for that co= unty, the clerk’s office where pleadings are filed, and the courtroom where your hearings will take place. You need to get familiar with the inter-workings of your particular courthouse = to ensure you will not be late for important hearings.

   &nbs= p;        B. Security. Upon entering any of the three courthouses listed above, you will have to pass through a metal detector. The main purpose behind this requi= rement is to protect the district judges and court personnel by ensuring that peop= le do not bring weapons into the building.&nb= sp; You will be required to place any bags, briefcases, or purses on a conveyor belt so a court security guard can examine what is inside of that = bag, briefcase, or purse. You will= also be required to walk through the metal detector and may have to empty your pockets or remove jewelry, belts, or shoes that may trigger the metal detec= tor sensors. Although this proces= s does not take near as much time as going through airport security, please plan a= head and leave plenty of time to get into the courthouse. Being late for a hearing because y= ou were stuck at the security checkpoint is usually not an excuse judges like = to hear.

        &= nbsp;   C. No cell phones. As a general= rule, you are not allowed to take your cell phone into any of the courthouses in = the Fifth Judicial District. Only members of the New Mexico State Bar Foundation (that means only attorneys) = who have trials or hearings scheduled at the courthouse are allowed to bring th= eir cell phones into the courthouse. Therefore, you will be required to leave your cell phone in your car= if you bring it with you to the courthouse.&n= bsp; Please plan accordingly.

D. The clerk’s office. The district court clerk’s office is where you will file all your pleadin= gs and legal documents. Pleading= s are the legal documents that set forth your claims and/or defenses of the lawsu= it. The clerk’s office keeps a r= ecord of your case from beginning to end, which contains every legal document fil= ed in the case by you or your opponent, and those documents issued by the judg= e, such as his/her orders. You c= an review and make copies of the documents in your own court file, but you will not be allowed to remove the file from the courthouse. The clerk’s office can also = tell you which judge has been assigned to your case.

E. The courtroom. Each district = judge has their own regular courtroom where they hold trials and other hearings.<= span style=3D'mso-spacerun:yes'> Each courthouse in the Fifth Judic= ial District posts a docket every day in the morning that lists the scheduled c= ourt hearings for that day. The do= cket tells you the courtroom where your hearing will take place. The docket also tells you the time= of your hearing, however, you should always check that fact before you come to the courthouse. Missing a hearing date can have bad consequences for your case, such as a dismissal. In fact, even if you have memorized where you are supposed to be and when, you should always verify the place a= nd time of your hearing once you get to the courthouse as the judge assigned to your case may be in a different courtroom than his/her regular one or the docket may have changed.

In <= st1:State w:st=3D"on">New Mexico, almost all trials and hear= ings are open to the public. There= fore, unless a sign outside the courtroom or court personnel tells you otherwise,= you may enter into the courtroom and sit in the gallery. However, please do so quietly to a= void interrupting a hearing in progress.

      =        IV.   &n= bsp;            = ;        GENERAL COURTROOM RULES AND ETIQUETTE

Respect for the justice sys= tem, its rules, its employees, and its customs is taken very seriously by the distri= ct judges of the Fifth Judicial District. You want to present the strongest case possible, and putting your best foot for= ward includes following a few local customs and rules of etiquette. As a starting point, you should be courteous to everyone, including court personnel.

A. Dress appropriately. You do not= have to wear a black suit and tie to court, but you should dress appropriately.<= span style=3D'mso-spacerun:yes'> You should remember that if your o= pponent has hired an attorney, his/her attorney will most likely be wearing a suit. Therefore, as a general= rule of thumb, you should dress as if you were going to a job interview. For example, men could wear a nice= collared shirt and slacks. Women could= wear a nice button-up shirt and slacks or a professional-style skirt. However, you may also wear casual clothes. You may absolutely NOT wear= tube tops, tank tops, inappropriately low-cut shirts, shorts of any kind, capri pants, mini-skirts, worn-out jeans with holes in them, or gang wear. If you wear any of these prohibited articles of clothing, you will NOT be allowed to enter the courtroom. This may have adverse effects on y= our case. Furthermore, if you are wearing a hat and/or sunglasses, you will be asked to remove them when you enter the courtroom.

B. No food, drink, or gum chewing allowed.&n= bsp; You may not bring food or drinks into the courtroom. Water will be provided for you at counsel’s table. In add= ition, you cannot chew gum in the courtroom.

C. Speak and act respectfully to the judge.&nbs= p; The judge is the man or woman who will preside over your hearings. The judge wears a black robe and s= its at the judge’s bench in the front of the courtroom. The judge has the power to make ru= lings on pretrial motions and when there is no jury, he/she decides who wins. The judge should be addressed as ̶= 0;Your Honor” or “the court” or “Judge (insert judge’s last name).” Do not say “Sir” or “Ma’am.”

You should always stand whe= n the judge enters the courtroom. Typically, you will be prompted to do so by the judge’s bailif= f, for example, “All rise for the judge.” If you do not stand, the judge wil= l take your behavior as a sign of disrespect for the justice system. That is not a good beginning to yo= ur hearing or trial. Once the judge ente= rs the courtroom, do not sit until he/she has told you to do so.

Do not interrupt the judge.= Furthermore, you should always sta= nd when addressing the judge. For example, if the judge asks you a question, stand to answer it. If you are arguing a motion you fi= led in front of the judge, stand to argue it.&nbs= p;

D. Address the opposing party through the judge, not directly. In addition, refer to the attorney= s and parties by their last name, such as “Mr. Smith.” For example, you should say “= ;Your Honor, Mr. Smith told me he received a copy of the final divorce decree I drafted.” Do not say “Bob, you told me you received a copy of the final divorce decree I drafted.”

E. Follow the court’s orders. If you do not, you could be held in contempt of court. The proper way to oppose a court&#= 8217;s order that you do not think is correct is to file a motion requesting relief from that court’s order.

F. Do not talk about the case with the judge without opposing counsel or the oppo= sing party (if also pro se) present. This is referred to as an ex-parte communication and it is not allow= ed by the New Mexico Rules of Procedure.

G. Please avoid bringing small children into the courtroom during hearings. While small children are allowed t= o come into the courthouse, they are sometimes excluded from the courtro= om if they disrupt proceedings. = The hearings that will occur in the cases covered by this guide are typically brief. It will most likely be difficult for you to be your own attorney and watch your child. It is strongly recommended that yo= u arrange for a babysitter when you have a court hearing scheduled, if you can afford= to do so.

H. Make copies. As a general rule= , you must provide a copy of every document you file in your case to the opposing party. It is also wise to mak= e an additional copy of every document for your own file.

I. Help for indigent pro se litigants. If you cannot afford to pay the cou= rt costs required to begin your case, you may file an “Application for F= ree Process and Affidavit of Indigency” and an “Order on Application for Free Process.” You = may ask your local clerk’s office about obtaining these forms. You may also find these forms onli= ne at www.supremecourt= lawlibrary.org/distciv.htm as Form 4-222 and Form 4-223.

J. Provide advance notice to clerk’s office if you will need an interpreter.= All hearings and trials in the Fif= th Judicial District are conducted in English. Therefore, a non-English speaking citizen may make a request for an interpreter in the district court clerk’s office. Please = make your request for an interpreter in advance, that is, before your hearing. Keep in mind that yo= u may have a family member or friend come to court to interpret for you.

      =           V.   &nb= sp;            =         FAMILY= LAW – DOMESTIC AFFAIRS

As stated in the “Scope” section, this guide does not apply to criminal cases or complex civil cases. Rather, = its scope is limited to cases that are simple enough for non-lawyers to handle = on their own. Therefore, the fol= lowing rules only apply to certain types of family law matters, such as if you are getting a divorce or you need child support, child custody, or protection f= rom an abusive spouse.

Here are just a few example= s of how a family law case may differ from your typical civil case. Judges alone decide such family law matters. You may be required = to participate in some type of mediation program before going to court. There is not usually a trial, but instead a few short hearings to resolve important issues. Now we will look at few specific f= amily law matters.

= A.    DIVORCE

Divorce is the most common = type of family law case in which people represent themselves. While doing your own divorce is fe= asible in some cases, there are still important steps you must take and procedural rules you must follow.

1. Make sure you meet the jurisdictional requirements. Before you can file a petition for divorce in New Mexico, either you or your spouse must have resided in New Mexico for at least six months immediately preceding the date of filing and have a domicile in New Mexico. “Domicile” means that = the person is physically present in this state, has a place of residence in this state, and has a present intention in good faith to reside in this state permanently or indefinitely. = Furthermore, any person serving in the military who has been continuously stationed in <= st1:place w:st=3D"on">New Mexico for a= period of six months will meet the domicile requirement. This is not a hard requirement to = meet, but if you fail to meet it, the judge will dismiss your petition.

The petition for divorce ma= y be filed in the county where either spouse resides, but the petition must be f= iled in a county where at least one spouse resides.

2. Identify why you need a divorce. I= n New Mexico, a di= strict court may decree a dissolution of marriage on any of the following grounds:= (1) incompatibility; (2) cruel and inhuman treatment; (3) adultery; or (4) abandonment. Incompatibility = is the most common ground for a divorce and exists when, because of discord or conflict of personalities, the legitimate ends of the marriage relationship= are destroyed preventing any reasonable expectation of reconciliation.

3. Is your divorce contested or uncontested?= Your divorce is considered = uncontested if you and your spouse agree on= all major decisions in the dissolution of the marriage, such as property distribution, child support, and child custody, if you have children. In this case, the parties usually = only have to go to court to file the necessary paperwork and to get the judge to sign off on their final decree. As discussed later, parties to an uncontested divorce in Eddy County must also complete a pro se orientation class. Uncontested divorces are more comm= on when the parties agree to have a “friendly” divorce or there ar= e no children from the marriage or the property distribution is simple.

On the other hand, a divorce becomes contested when = one spouse files a “petition” for divorce and the other spouse file= s a “response.” By fi= ling a response, the other spouse is essentially alerting the court that the spous= es do not agree on all major decision= s. Contested divorces typically occur= when there are bad emotions between spouses, valuable property is involved, or issues of custody and support of minor children exist. Contested divorces are naturally m= ore complex procedurally and it may be wise to consult an attorney before decid= ing to handle a contested divorce on your own.= To be clear, this guide is not intended for those spouses involv= ed in a contested divorce; while some of the general rules may apply, this gui= de does not cover all procedural steps that may be necessary in such a case.

Note: An uncontested= divorce may turn into a contested divorce (if the spouses realize they do not agree= on all major decisions) and vice versa (if the spouses realize they can reach = an agreement, possibly through the help of a mediator).

4. If your divorce is <= u>uncontested, USE the online resources to guide you through the process!! Fortunately, the state of New Mexico recog= nizes that many people try to handle their divorce without hiring an attorney. Thus, as mentioned previously, this state provides many resources for pro se litigants to help them through the process. For your assistance, attached is a guide to show you how to navigate through the www.nmcourts.gov website. The next few steps will refer you = to forms you can get online that you will need to fill out and bring to court.=

Remember, the forms discuss= ed below may ONLY be used if both husband and wife have already agreed not to contest the following: (1) the court granting the parties a divorce; (2) how the husband and wife will divide all of their property and debts; and (3) if the husband and wife are the parents of one or more children under the age of 1= 8, a parenting plan and child support obligation for their children.

5. Costs. Filing a petition for divorce in <= st1:State w:st=3D"on">New Mexico curre= ntly costs $137.00. If you cannot = pay the full filing fee, you may file an “Application for Free Process and Affidavit of Indigency” and an “Order on Application for Free Process.” You may ask y= our local clerk’s office about obtaining these forms. You may also find these forms onlin= e at www.supremecourt= lawlibrary.org/distciv.htm as Form 4-222 and Form 4-223.

6. Complete a verified petition for dissolution of marriage and give notice to other sp= ouse. If you are reading this guide, you= have most likely already filed a petition for divorce. If not, you may obtain the appropr= iate form online following the steps in the attachment. If you do not have children, you w= ill need Form 4a-301 “= ;Petition for dissolution of marriage; no children.” If you have children, you will nee= d to fill out Form 4a-302 “Petition for dissolution of marriage; with children.”

The spouse filing the petit= ion, the “Petitioner,” must give notice to the other spouse, the “Respondent.” In = an uncontested divorce, notice or “service of process” should not be a problem because you and your spouse have already agreed on major decisions of the divorce.

If your divorce is uncon= tested as defined above AND yo= u or your spouse owe child support as calculated below, you must also fill out Form 4a-102, which is titl= ed “Domestic relations information sheet.” You must give the completed form t= o the court clerk at the time you file your petition. This form is required by New Mexico and f= ederal law for child support enforcement. The “Respondent” is also required to fill this form out = when he/she files their first document with the court.

7. Attend the mandatory orientation for pro se litigants. In Eddy County only, spouses who wish to handle their own uncontested divorces must compl= ete a mandatory orientation session. No hearings will be scheduled regarding your divorce until you attend this orientation session. When you= file you petition for dissolution of marriage in the clerk’s office, they = will tell you the upcoming dates of the orientation sessions.

8. Comply with the temporary domestic order (TDO). As a general rule, once the petiti= on for dissolution of marriage is filed and the Respondent receives notice, a mutu= al restraining order, also referred to as a “Temporary Domestic Order= 221; goes into effect which offers the parties some protection. This “TDO” provides th= at (1) neither party may dispose, transfer, encumber, or conceal marital property, except in the usual course of business or for necessities; (2) neither party may harass or molest the other party; and (3) neither party may remove the minor children from the state without the written permission of the other parent. The TDO is required t= o be issued, unless otherwise ordered by the court.

9. Determine if a tempo= rary protection order (TPO) is necessary. A TPO is different than a TDO in t= hat a TPO does not automatically issue upon filing a petition for divorce. If your spouse physically abuses or mentally harasses you or your children or seriously threatens to, you may n= eed to obtain a TPO for you protection and safety. However, a TPO is usually not nece= ssary in an uncontested divorce.

10. Determine who gets what. New Mexico is a = community property state. This = means there is a presumption under New Me= xico law that all property (assets and debts) acquired after marriage and before= the final decree of divorce is issued is owned equally by each spouse. All property acquired by either sp= ouse before the marriage or after the final divorce decree is entered is that spouse’s separate property. Thus, upon divorce, you and your spouse will each take half of the marital assets= and debts and keep your separate property, unless otherwise agreed.

The spouses may agree in a = Martial Settlement Agreement to divide the property in any way they see fit, and the court will respect the spouses’ agreement as long as it is not grossly unfair to one spouse. In an <= u>uncontested divorce, there should be no major disagreements as to how to distribute the marital property. If a minor disagreement exists, please know the value of the property so the judge may determine how to fairly divide the asset or debt. Furthermore, to prevent problems i= n the future, if one spouse takes an asset, such as the family home, it is a wise that he/she should also take on the debt associated that asset, such as the mortgage. You may find the ma= rital settlement agreement form online, which is Form 4a-311 [or 312] “Verified marital settlement agreement; simple [or complex].”

You MUST fill out and bring= to court either Form 4a-311 or Form 4a-312 because the law requires the court has a document that someh= ow divides up the marital property in order to grant a final decree of divorce= .

11. If you have children, determine who has custody. New Mexico law presumes that upon divorce, spouses wi= ll have joint custody over children out of the marriage, but not step-children (unless they have been legally adopted by the non-biological parent-spouse)= . Joint custody means that both spou= ses will share equally in making major decisions affecting the child’s life. Therefore, no change regarding an important decision will happen unless both parents agree to the change in writing or the court changes it.=

While New Mexico law presumes joint custody,= the parties may agree that one spouse should have sole custody which means that= one parent has the right to make all major decisions affecting the child’s life.

Joint custody does NOT mean equal time-sharing of the child or chil= dren. Thus, you MUST fill out a time-sha= ring agreement to turn into the court. You may find this “Parenting plan and child support obligation” form, which is <= u>Form 4a-313, online. Pleas= e fill it out and bring it to court with you.&nbs= p;

12. If you have children, you MUST fill out a “Child Support Worksheet.̶= 1; Form 4a-313 also has a section for you to include any child support paym= ents that will be made by either spouse. Child support in New M= exico is calculated according to the child support guidelines. The formula is based on the follow= ing factors: (1) the gross income of both parties; (2) the timesharing arrangem= ent; (3) the number of children; and (4) any extraordinary expenses or circumstances.

Unless the parties agree or= the court orders otherwise, each party must complete the worksheet and serve it= to the other party at least five (5) days before trial. However, the parties may agree to = have one spouse complete the worksheet, upon the approval of the other spouse.

You may find an interactive “Child Support Worksheet” online as demonstrated in the attached guide. This interactive tool = is simple and easy to follow and it automatically calculates the child support amount for you after you enter the required information. Follow the instructions to fill it= out, print it up, and bring it to court.

13. Wage Withholding Order. This o= rder is optional, but strongly recommended.&nbs= p; A wage withholding order requires that the party paying child support agrees that support may be withheld from his/her wages. This order ensures the money will = go to the child and provides evidence of payment, if the non-paying spouse later argues that child support was not paid.&nb= sp; The wage withholding order form may be found online as Form 4a-341.

14. Spousal Support. Alimony is finan= cial support that one ex-spouse pays to the other to lessen the financial hardsh= ip that may result when a couple separates.&n= bsp; If one spouse agrees to pay the other spouse alimony, please fill out the complex marital settlement agreement form (Form 4a-312) as that form includes a provision for spous= al support.

   &nbs= p;        15. Name change. Please include a provision in your marital settlement agreement or final divorce decree requ= esting the court to order that your former last name be restored. For example, “Petitioner (or Respondent) desires to restore his/her former name of __________.”

        &= nbsp; 16. Realize that the case is not over until the judge signs a final divorce decree.= Until then, you are still married.= Make sure you get that final decree signed by the judge and filed with the clerk’s office. It is worth repeating that you and = your spouse are not actually divorced until the final decree, signed by the judg= e, is filed with the clerk’s office!! You may find the form for = the final decree online, which is F= orm 4a-321 (no children) or Form 4a-322 (with children). Fill it out (the judge will not do it for you) and bring it to court= .

17. File all required forms in the clerk’s office and request a court hearing<= /i>. Once you and your spouse have gath= ered and filled out all the necessary forms, i.e., the petition for divorce, the marital settlement agreement, the parenting plan and child support obligati= on form (if you have children) and the final divorce decree, go to the clerk’s office of the courthouse, file all your documents, and reques= t a hearing. The clerk’s of= fice will set a hearing date for you on the judge’s default day.

Note: You will not a= ctually file the final divorce decree until the judge signs it. Therefore, you will need to take t= he original copy of the final decree with you to your hearing. It is strongly recommended that yo= u also bring copies of the final decree with you to your hearing.

   &nbs= p;        18. The court has continuing jurisdiction over matters of child custody and support= . Although the parties are no longer married once the final decree is entered, the district court maintains authority over matters pertaining to child custody and support. Therefore, the parents may come ba= ck to court to enforce or modify child custody and support orders.

B.&n= bsp;    Domest= ic Violence

Domestic violence, also ref= erred to as family violence and domestic abuse, is actual violence and threats of violence between people in certain relationships. The types of harms covered by New = Mexico law include: (1) physical harm caused by kicking, hitting, punching, biting, slapping, or other physical attack, and/or (2) severe emotional distress ca= used by bodily injury or assault, threats that cause fear of bodily injury, crim= inal trespass, or criminal damage to property, repeatedly driving by a residence= or workplace, harassment, or harm or threats to harm a child.

In addition, to be consider= ed “domestic” violence, the harm must be inflicted by a spouse or former spouse, partners, current or past boyfriends or girlfriends, family members, including stepparents, in-laws, children, co-parents, someone in y= our household, or anyone with whom you have a continuing personal relationship.=

Although you have many opti= ons if you are a victim of domestic violence, such as calling the police or contac= ting a domestic violence shelter, this guide will only detail how to get help through the court process.

1. Get a temporary protection order (TPO). This is the first step to receiving long-term protection. A TPO i= s a court order that requires your abuser to stay away from you or your children. The person who requ= ests a TPO is the “petitioner,” and the abuser is called the “respondent.” To = get a TPO, you will need to fill out a short form describing the abuser and what happe= ned. You may get all applicable forms fr= om your local clerk’s office in the courthouse. However, these forms are also accessible online at www.nmcourts.gov<= /a>, as illustrated by the attached guide. Fill out the petition and turn it into the court clerk. There is no charge to file the petition.

Typically, the judge will r= eview your petition as soon as possible, but you may have to wait a couple hours = for the judge to sign the TPO. The judge may also want to ask you questions before signing the order. Once the order is signed, it is go= od until the judge makes a decision about a long-term order at a hearing. The respondent will receive notice= of the allegations against him/her and a hearing will be scheduled for no late= r than ten (10) days after the court issues the TPO. If the respondent violates this co= urt order, you should call the police.

2. Attend the hearing and bring evidence. The purpose of the hearing is to allow the respondent/alleged abuser= a chance to explain his/her side of the story. At the hearing, the judge will dec= ide if the behavior you described in your petition constitutes domestic abuse unde= r New Mexico law.<= span style=3D'mso-spacerun:yes'> The judge will most likely ask bot= h of you what happened. However, your = case will be much stronger if you have some physical evidence to back up your si= de of the story. If available, y= ou should bring photos, damaged possessions, medical documentation of injuries, witnesses of the abuse, etc., to prove your case.

Please keep in mind that it= may be wise to get legal advice as soon as possible, especially if you will be goi= ng to court. Normally, it is not necessary to have a lawyer to assist you in filing for a TPO. However, it may be a good idea to = have a lawyer represent you at the hearing for a permanent order, especially if the respondent has an attorney. A lawyer can help you organize your case, explain how to subpoena witnesses, = and explain how to give evidence in your case.

3. The final order of protection. If the judge decides that the respondent’s conduct was domestic abuse, t= he court will issue a final order of protection. The judge decides how long the fin= al order will last and it could be months or even years. The judge may also make visitation= and child support orders in the best interest of any children involved.

4. For more thorough information about domestic violence, visit www.nmlegalaid.org or www.lawhelpnewmexico.org.=

C.&n= bsp;   Name C= hange

In <= st1:place w:st=3D"on">New Mexico, anyone over the age of fou= rteen (14) may file a petition to the district court to have his or her named cha= nged or established. If you are un= der the age of fourteen, your parent or guardian may file the petition for you.=

1. File the petition and schedule a hearing.&n= bsp; You must be a resident of New Mexico to file a petition for a name change. You must also file your petition i= n the district court of the county in which you reside. When you file your completed petit= ion in the clerk’s office, they will set a date for your hearing with the ju= dge. The necessary forms are not posted online yet, but you may get all required for= ms from your local clerk’s office in the courthouse.

2. Publish notice of petition. After= you file the petition to change your name, but before your hearing on th= at matter, you must give notice. This means that you must provide the public with notice that you are having a hearing to change your name. = You do this by publishing notice of the hearing in some newspaper printed in your county. If your county does n= ot have its own newspaper, then notice must be published in a newspaper that is printed in the county closest to the county you live in and that is circulated in your county. Currently, all three counties in t= he Fifth Judicial District (Chaves, Eddy, and Lea) have their own newspaper.

The notice must include<= /u>:

(1) the nature of your petition, for example, that you are requesting a name change, and

(2) the time and pla= ce of the hearing the clerk’s office set for you when you filed your petition.

The notice must be published at least once a week for = two consecutive weeks. Sometime BEFORE your hearing, you = MUST get an affidavit from the newspaper, which will serve as your proof of publication. This aff= idavit needs to be filed with the clerk’s office and a copy of the affidavit should be brought to your hearing.

      =        VI.   &n= bsp;            = ;        APPEAL= S FROM MAGISTRATE AND MUNICIPAL COURT

New Mexico law provides that any party= who is aggrieved by the judgment or final order of the magistrate or municipal court may appeal, as permitted by law, to the district court of the county within which the magistrate or municipal court is located. The appeals process is essentially= the same for appeals from both magistrate and municipal court and for both crim= inal and civil cases. While this g= uide does not tell you how to handle your individual case on appeal, it does pro= vide the rules regarding how and when to file an appeal. Of course, once you get to district court, all the general courtroom rules and rules of etiquette described abo= ve will be applicable. Please note that an appeal to dist= rict court means you get a brand new trial!

A. File a notice of appeal with the district court. A notice that you will appeal the magistrate or municipal court’s judgment or final order must be filed with the district court fifteen (15) days after the judgment or final order is filed in the magistr= ate or municipal court.   The proper form, Form 9-607= , may be found online at www.supremecourtlawlibrary.org/mun.htm. The notice of appeal form may also= be obtained from your local clerk’s office in the district courthouse. Please note that you may have to p= ay a docket fee when you file your notice of appeal with the district court.

Included in Form 9-607 is a provision that requests a trial setting within six months of when you file the notice of appeal with the district court. This provision is incl= uded for you because New Mexico law imposes a duty on the appellant to obtain a trial before the district c= ourt within six (6) months of the date of the filing of the notice of appeal.

B. Serve the opposing party with a copy of the notice of appeal. At the time the notice of appeal is filed in the district court, you must serve the opposing party. This means you must provide the op= posing party with a copy of the notice of appeal.= You must file proof of service with the clerk of the district court = that a copy of the notice has been served. The appropriate form for service of process is included in Form 9-607.

C. File a copy of the notice of appeal with the magistrate or municipal court.<= span style=3D'mso-spacerun:yes'> You must also file a copy of the n= otice of appeal, which has been endorsed by the clerk of the district court, with= the magistrate or municipal court from which you are appealing. In addition, if you had to pay a d= ocket fee to file your appeal in district court, you will need to provide the magistrate or municipal court with a copy of the receipt of payment of the docket fee.

AGAIN, PLEASE NOTE THAT THE INFORM= ATION CONTAINED IN THIS GUIDE IS GENERAL IN NATURE. IT IS NOT LEGAL ADVICE. FOR MORE SPECIFIC QUESTIONS, CONSU= LT AN ATTORNEY.