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Divorce and Separation in New Mexico


What are the grounds for divorce?
There are four statutory grounds for dissolution of marriage in New Mexico: abandonment, adultery, cruel and inhuman treatment and incompatibility. Most petitions are filed on the ground of incompatibility. Incompatibility exists when, because of discord or conflict of personalities, the legitimate ends of the marriage relationship are destroyed, preventing any reasonable expectation of reconciliation.

What are the grounds for separation?
An action for legal separation may be filed when there has been a permanent physical separation of the spouses.

What is the difference between a divorce and a legal separation?
All of the issues resolved in a divorce such as custody, child support, spousal support, and property allocation are also resolved in a legal separation. A legal separation, however, does not free you or your spouse to marry another person. A lawyer should advise you as to when a legal separation or divorce is appropriate.

Who decides my case?
Domestic matters are decided by a judge, not a jury. You may agree to a settlement prior to trial, or if agreement is impossible, have the issues decided by the judge. It is generally preferable to reach an agreement since it is often easier to live with agreements you make than with the decisions a third party makes for you.

What does my lawyer do?
A lawyer’s duty in a domestic case is to inform you of your rights and obligations and assist in negotiating an equitable settlement. If the settlement cannot be reached, your attorney’s obligation is to prepare your case for trial and to present it in court. The attorney should advise you of all settlement negotiations and whether the attorney believes a proposed settlement is equitable and in accordance with what the law provides. It is best to have your attorney represent you in all negotiations with your spouse. Never sign any documents without first discussing them with your attorney.

Who receives custody of the children?
The New Mexico Legislature has passed a statute designed to encourage parties to share decision-making responsibility for their children. This statute provides that it is presumed that it is in the best interests of the children for the parties to have joint legal custody in the sense that the parents will jointly make decisions regarding the children’s area of residence, health care, education or child care, religion and recreation. However, joint legal custody does not mean that the parents will spend an equal amount of time with the children or have equal financial responsibility.

The question of physical custody (how the parents should divide up periods of time when they will have responsibility for caring for the children) is a separate question. If the parties cannot agree on whether they will share decision-making responsibility and/or how they will divide up their periods of physical responsibility for the children, the court will refer the case to mediation, if available. If the parties cannot resolve their differences in sessions with professional mediators (or if mediation is unavailable), the court will decide what arrangements are in the best interests of the children. In doing so, the court will consider such factors as:

  • the recommendations of professionals;
  • the parenting abilities of the parents;
  • the relationships of the children with their respective parents;
  • the age of the children;
  • the input of those who significantly interact with the children, such as teachers and caregivers;
  • the children’s adjustments to their home, their school and their community; and,
  • the mental and physical health of all of the individuals involved.

To emphasize, the legislature and the courts are attempting to encourage divorced parents to work together to raise their children. They recognize that it truly is in the children’s best interests to have two involved parents working together to raise them.

What are parents’ child support obligations?
Child support is money paid on a regular basis for the support, maintenance and education of a child. The legislature has passed very detailed and specific guidelines for parents to use to determine their support obligations. The guidelines basically consider each parent’s gross income (before taxes) and each parent’s period of physical responsibility for the children. A court will apply these guidelines to order the payment of child support. In addition to the amount established by the guidelines, parents must share the following in proportion to their income:

  • the costs of providing medical and dental insurance; and,
  • the reasonable childcare costs for the children. If necessary, the child support obligation may include the additional cost of extraordinary medical, dental and counseling expenses, extraordinary educational expenses, and transportation and communication expenses necessary for long distance visitation or time-sharing.
  • The parties may annually make a written request upon the other party to furnish the following financial information:
  • Federal and state tax returns, including all schedules for the year preceding the request;
  • W-2 statements for the year preceding the request;
  • Internal Revenue Service Form 1099 for the year preceding the request;
  • Work-related day care statements for the year preceding the request;
  • Dependent medical insurance and premiums for the year preceding the request; and
  • Wage and payroll statements for four months preceding the request.

It is possible to have child support automatically taken out of the paycheck of the parent paying the support.

When is spousal support awarded?
Spousal support can be awarded to either husband or wife. Permanent spousal support is reserved for cases of lengthy marriages, poor health on the part of the supported spouse, or other unusual circumstances. Spousal support generally ceases when the supported spouse remarries. It does not cease when the supporting spouse remarries. Spousal support may be awarded for a ‘Rehabilitative’ period or other vocational training to allow one party to finish an education or to adjust to being a single parent. ‘Transitional’ spousal support may be granted for a period of months to allow one spouse the opportunity to get back on his/her feet.

Some of the factors the court will consider on whether to grant spousal support are:

  • The needs of the supported spouse;
  • The ability to pay spousal support;
  • The age, health and means of current or future self-support for both spouses;
  • The good faith efforts of both spouses to maintain employment or become self-supporting;
  • The standard of living during the marriage;
  • The duration of the marriage; and,
  • The amount of property owned by each party and amount of debt of each party.

What can I expect to receive from our property?
New Mexico is a community property state. Each party is presumed to have a one-half interest in property, both real (land) and personal (stocks, bank accounts, bonds, retirement benefits etc.) acquired during marriage. The law requires both parties to make a complete disclosure of all assets and to account for any assets disposed of during the separation. Property acquired after separation and before divorce is also community property.

Property owned prior to marriage, inherited during the marriage, or received by gift during marriage is not community property but separate property.

The division of personal property (personal effects) is subject to great misunderstanding and disagreement. Each party is entitled to his or her own personal belongings such as clothing, jewelry and personal effects. When you believe the separation is going to be permanent, it is wise to have the personal property divided and exchanged. Failure to do so may lead to misunderstandings over destroyed, damaged or misplaced items.

Who has to pay the debts?
Both husband and wife are liable for community debts incurred during the marriage by the community. A community debt may be incurred with the signature of only ONE of the spouses. A separate debt is formed during marriage when the creditor has actual knowledge before the transaction that the debt is a separate debt.

The parties may agree as to the allocation of responsibility for the debts or the court will allocate them in accordance with law. However, creditors may not be bound by the parties’ or courts’ allocation of responsibility, and may choose to attempt to seek payment from the former spouse in event of default. You should supply your attorney with a complete and accurate list of all obligations.

How can I establish my own line of credit?
A divorced woman may find her credit is poor even though she has been paying the bills. You should attempt to keep a gasoline credit card and a general credit card with the understanding you are paying those obligations and your spouse is not to use those cards until you have credit in your own name. This can be done only by agreement and not by court order.

Special Note - This information has been issued to inform and not to advise. It is based on New Mexico law in effect at the time of writing. The statements are general and individual facts in any given situation may alter their application or involve other laws not referred to here. You should always seek advice from an attorney if any questions arise. This document is intended as a public service and is not an endorsement of any attorney or law firm.