Whether you live in New Mexico or elsewhere, divorce for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If they have been married for a significant length of time and one of them will be unable to be self-supporting after the divorce, the issue of alimony may also arise. If there are minor children, they will also need to resolve issues of child custody, visitation, and support.
Residency and where to file
A divorce in New Mexico is called a dissolution of marriage. In order to file for dissolution in New Mexico, either you or your spouse must be a resided in the state for at least six months, and must have a domicile in the state. Having a domicile means that the person is physically present in the state, and has a good faith intention to reside in the state permanently or indefinitely. You may file in District Court in the county where either you or your spouse resides.
The simplest procedure is an uncontested dissolution. This is where you and your spouse can reach an agreement about the division of your property, and, if you have any children, what arrangements will be made for them. You begin the procedure by preparing a document called a Petition for Dissolution of Marriage, along with various other supporting documents. For an uncontested case, one of these documents will be a marital settlement agreement outlining the division of assets, and your agreement regarding any children. These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Decree of Dissolution of Marriage.
Grounds for divorce
Grounds for dissolution are legally recognized reasons to get a dissolution. This is the justification for severing the marital relationship. New Mexico, like most states, has what are commonly called no-fault grounds for dissolution, and several traditional fault-based grounds. To get a no-fault dissolution in New Mexico you need to state in the Petition for Dissolution of Marriage that “the parties are incompatible.”
There are also three fault-based grounds for dissolution: (1) cruel and inhuman treatment, (2) adultery, and (3) abandonment. However, in most cases, there is no reason to use any of these, since they add complexity to the process by requiring proof.
A dissolution involves dividing property and debts between you and your spouse. Generally, each party will be able to keep their separate property, which is property:
- acquired before marriage
- acquired after entry of a decree for division of property, alimony, and child custody and support without dissolution of marriage pursuant to Section 40-4-3, New Mexico Statutes Annotated
- designated as separate property by a judgment or decree of any court having jurisdiction
- acquired by gift or inheritance, and
- designated as separate property by a written agreement between the parties
All other property is community property. Absent an agreement, community property will generally be divided equally, without regard to the fault of either party. There are no statutory factors, which leaves the division of community property to the discretion of the judge.
Alimony in New Mexico
Alimony is referred to as spousal support in New Mexico. Spousal support may be awarded “as under the circumstances of the case may seem just and proper.” This may be rehabilitative spousal support, for education, training, or other rehabilitation to increase the ability to become self-supporting; transitional spousal support, to supplement the receiving spouse’s income for a limited period of time; or spousal support for an indefinite duration. Absent an agreement of the parties, the award of spousal support, as well as the amount and duration, is determined by the court after considering the following factors:
- each party’s age, health, and means of support
- each party’s current and future earnings, and earning capacity
- each party’s good-faith efforts to maintain employment or become self-supporting
- each party’s reasonable needs, including the standard of living during the marriage, medical insurance, and life insurance on the life of the person paying support
- the duration of the marriage
- the amount of the property awarded to each party
- the type and nature of each party’s assets; provided that potential proceeds from the sale of property by either party shall not be considered, unless required by exceptional circumstances and the need to be fair to the parties
- the type and nature of each party’s liabilities
- income produced by property owned by each party, and
- any agreements entered into in contemplation of the dissolution of marriage
Child custody in New Mexico
If you and your spouse have any minor children, there will have to be a custody determination. Traditionally, one parent was awarded custody, and the other was given visitation rights. The modern trend is to keep both parents actively involved with their children, which has led to the concept of joint custody, and New Mexico child custody presumes that joint custody is in the best interest of the child. Custody really comes down to figuring out how the children’s time will be divided between the parents, and how decisions will be made.
If you and your spouse reach an agreement on custody, it will be accepted by the judge unless it is determined not to be in the child’s best interest. If you cannot reach a custody agreement, the judge may order mediation. The court may also require each party to submit a proposed parenting plan. The judge will then decide the issue, after considering the following factors:
- the wishes of the parties
- the wishes of the child, especially if age of 14 or older
- the child’s relationship with parents, siblings, and any other significant person
- the child’s adjustment to home, school, and community
- the mental and physical health of all individuals involved
- each party’s is capable of providing adequate care for the child during each period of responsibility, including arranging for the child’s care by others as needed
- each party’s willingness to accept responsibilities of parenting, including care of the child at specified times and to relinquish care to the other parent at specified times
- whether the child can maintain a relationship with both parties
- whether each parent is able to allow the other to provide care without intrusion
- the suitability of a parenting plan for joint custody
- the geographic distance between the parties’ residences
- the willingness or ability of the parties to communicate, cooperate, or agree on issues regarding the child’s needs
- any judicial adjudication that either party has engaged in domestic violence, and
- any other relevant factor
Child support in New Mexico
A decision must also be made about how the children will be financially supported. This almost always comes down to one parent paying money to the other. Child support is determined by taking into account the needs of the child, and each parent’s relative ability to meet those needs. This is determined by reference to the New Mexico child support guidelines.
If you and your spouse agree on the major issues, an online divorce may be right for you. Otherwise, you can talk to an attorney to get advice or help filing for divorce with the LegalZoom personal legal plan.
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