Divorce is a legal proceeding that dissolves a marriage between a husband and a wife. After a divorce is finalized, both the husband and the wife are free to remarry as they choose.
All states in the United States require the spouse that files for the divorce, called the plaintiff, to be a resident of the state in which they file their divorce. The requirements for residency vary by state but generally range from 6 months to 1 year.
In addition, every state has its own procedures for obtaining a divorce. The majority of states have adopted the no fault divorce system while others retain the fault divorce system. In New Mexico, a spouse can file for a no fault divorce or a fault divorce.
The main component of a no fault divorce is that the spouse filing for the divorce is not required to allege any fault or wrongdoing on behalf of either party in order to be granted a divorce. In some states, the spouses are required to declare that they can no longer get along. Additionally, in some states, the couple is required to reside apart for a specific period of time, months or years, prior to filing for a no fault divorce.
In a fault divorce, the spouse who is filing for the divorce is required to provide a reason as to why the divorce should be granted. The fault rules or justifications for divorce vary by state. However, commonly cited reasons include:
- Cruelty, or the infliction of unnecessary or emotional pain;
- Adultery;
- Desertion for a specified period of time;
- Incarceration for a set number of years; and
- The physical inability to consummate the marriage.
In New Mexico, there are 4 grounds for which a divorce will be granted. These include:
- Incompatibility;
- Cruel and inhuman treatment;
- Adultery; and
- Abandonment.
Legal separation is a separation of the spouses that is court approved. It usually involves a court order that outlines the legal rights and obligations of the parties. A legal separation is more formal than a trial separation because the terms of the separation are reviewed and approved by a court. A legal separation does not dissolve a marriage.
The main difference between a divorce and a legal separation in New Mexico is the requirement that the spouses must satisfy prior to being permitted to obtain a divorce. In New Mexico, the only requirement the spouses must satisfy prior to being permitted to obtain a divorce is a residency requirement. New Mexico requires one spouse to reside in the state for at least 6 months before they are permitted to file for a divorce.
However, a legal separation does not have this same residency requirement for the spouses. In New Mexico, both a legal separation and a divorce require the spouses to file legal paperwork and go to court.
While a legal separation may include many of the same issues which are resolved through divorce proceedings, such as the distribution of assets and child custody issues, the individuals remain legally married. When the individuals get a divorce, on the other hand, as noted above, the marriage is dissolved and the individuals are free to remarry.
What Paperwork is Needed to File for Divorce in New Mexico?
In order to initiate the divorce process in New Mexico, a spouse is required to file a Petition for Dissolution. If the couple has children, it will be filed as a Petition for Dissolution with children. If the couple does not have children, it will be filed as a Petition for Dissolution without children.
An individual can access both of these forms online. The individual may fill out the form and then file it in the district court of the county in which the individual or their spouse resides.
As noted, there are separate forms for spouses with children and spouses without children since there are different legal issues which arise in each situation. After the individual files the petition, they are required to notify their spouse of the divorce proceedings by a court summons.
How Does Community Property Differ from Separate Property According to New Mexico Law?
New Mexico is a community property state. This means that a court will divide all of the community property, or the property of the marriage, equally between the spouses.
Community property is property which both spouses acquired during the marriage. Any property which is one spouse’s separate property will not be affected by the outcome of the divorce.
In the State of New Mexico, separate property is any property which:
- Was acquired prior to the marriage;
- Was classified by a court judgment as being separate property;
- Was received as a gift or inheritance; or
- The spouses agreed in writing to classify the property as separate property.
It is common for disputes regarding the distribution of property in a divorce to arise, especially regarding how certain items of property are categorized. These types of disputes may require additional proof or evidence in order to determine which spouse should receive which items of property.
What Should We Do if We Have Children Involved in a Divorce Filed in New Mexico?
In general, a court will allow the spouses to work out a child custody arrangement on their own, if possible. However, if the spouses are unable to reach an agreement regarding how custody and visitation should be arranged, the court will step in and decide custody for them based on the best interests of the child.
Some factors which may be used when determining the child’s best interest with regards to custody and visitation may include:
- The physical and mental health of each parent;
- Any instances of abuse;
- The child’s connection to their current home of school; and
- If the child is 14 years of age or older, the court may consider the child’s preferences when making a determination.
A court may also permit the spouses to determine the amount of child support which should be paid, as long as the amount is just and proper in the eyes of the court. If the child support amount proposed is not just and proper, then the court may get involved and make an adjustment to the amount.
Do I Need to Pay Alimony If I File for Divorce in New Mexico?
In some divorce cases, one spouse may be ordered to pay alimony, also called spousal support, depending on the circumstances. In general, if the marriage lasted less than 5 years, neither spouse will be entitled to receive alimony payments.
However, there may be exceptions if the court determines it is clear that one party will require alimony for a short period for rehabilitative or transitional purposes or if they are entitled to money that they invested in improving the other spouse’s earning potential.
If the court determines that one spouse should receive alimony, the court typically relies on a formula to calculate the amount of the payments. The formula consists of 28% to 30% of the paying spouse’s gross income minus 50% of the receiving spouse’s gross income.
Should I Hire a Divorce Lawyer in New Mexico?
It is essential to hire a New Mexico divorce lawyer if you are considering filing for divorce, have filed for divorce, or have received notice that your spouse has filed for divorce. Divorce cases can be extremely complex and emotionally challenging.
Your lawyer can protect your interests and fight for your legal rights during the divorce process. They will also ensure that the assets of the marriage are divided as fairly as possible and the best child custody and visitation decisions are made for your situation.
