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New Mexico Family Law Attorneys
Family law is one of the most sensitive practice areas precisely because it has such a large potential to disrupt people’s lives. Whether you are working through a divorce, trying to secure child custody, or desperately need a revision to your current child support agreement, New Mexico Financial & Family Law can be here for you.
At New Mexico Financial & Family Law, we pride ourselves on helping clients steady their lives. We help people make the transition from the difficult to the stable, from the uncertain to the predictable. We know we are meeting good people at their worst times. It is our privilege and unique challenge to help good people to be their best again.
New Mexico laws are fairly straightforward when it comes to family law matters. The state allows for no-fault divorces; marital property is divided equitably; custody — both physical and legal custody — can be shared between parents; and child support agreements are calculated using a set formula based upon both parents’ income as well as the child’s (or children’s) estimated typical expenses.
View our categories of New Mexico family law practice below for general guidelines on how the state handles the respective matters. If you have specific questions or require legal assistance with any aspect of family law, do not hesitate to contact our firm. We can provide you with a consultation to help you understand your situation and your options for moving forward.
Call (505) 503-1637 or contact us online to schedule your appointment today. Our firm is available for both one-time consults as well as full case management for any of your New Mexico family law needs. Start seeking the path back to stability and familiar footing; call today.
New Mexico Divorce Laws
To File for Divorce in New Mexico, You or Your Spouse Must-Have 6-Month Residency
To be qualified to file for divorce in the state of New Mexico, at least one party has to technically be a state resident. This means one person had to have lived in the state for at least six months, and they must be “domiciled” there. To be domiciled, the individual has to be physically present in the state with a home residence — owned or leased — in which they intend to stay for the foreseeable future. If neither of you meets these requirements, the court will determine that they do not have jurisdiction over the case and will dismiss it.
Grounds for Divorce
New Mexico is considered a “no-fault” divorce state. Technically, there are several categories of grounds for divorce:
- Cruelty and inhuman treatment (abuse)
- Incompatibility (no-fault)
The last category, “incompatibility,” requires no proof on the part of the filer. This means that in New Mexico, one can file for divorce without having to provide concrete legal reasoning and evidence to back up that reasoning.
No Defense Against Divorce in New Mexico
New Mexico does not allow for “defenses” that could prevent a divorce from occurring. Once a party has decided to file for divorce and completes notice of process — AKA serving divorce papers — then only the filer can decide to halt the proceedings.
While there are no means with which to preserve a marriage once the other party decides to file for divorce, there are matters to be decided that can complicate or delay a divorce proceeding. The most pressing of these matters are child custody decisions, marriage property division, and coming to a child support agreement.
30 Day Waiting Period
You are required to complete a 30 day waiting period between the service of process and the earliest available date for judgment that can finalize your divorce. However, given the complicated nature of dividing property and undergoing the full legal divorce process, most cases are likely to take over 30 days except in rare exceptions where the filer is requesting judgment as soon as possible.
New Mexico Child Custody Laws
Child custody laws in New Mexico are governed under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which the state adopted in 2001.
Custody Decisions Are Made in the Child’s Best Interests
Like many other states, custody decisions are weighed by the court in light of the “best interests” test for the child. The court will determine best interests based both upon general legal tests as well as specific information obtained through documents, testimony, and depositions. Children can have input on what they consider to be their own best interests, but this input is not weighed as a significant component until the child reaches 14 years of age.
Joint Custody, Legal Custody, and Physical Custody
New Mexico law allows for joint custody, and the state distinguishes between two types of custody: physical and legal. Physical custody determines when each parent gets to see their kids and have them stay over. Legal custody involves major decisions in the child’s life, including medical decisions, where the child goes to school, and whether the child can move to another state.
Parents can have joint custody for one type of custody but not the other, depending on the circumstances and the best interests of the child. The state of New Mexico tends to not award sole custody in either case except in circumstances where a parent is absent, has been abusive, is imprisoned, or has ongoing problems with drug or alcohol consumption. New Mexico also tends to avoid awarding custody to a non-parent, except in situations where both parents are missing, deceased or have been deemed “unfit” by the court.
Joint custody does not automatically mean a completely equitable, 50-50 arrangement. The court will determine a visitation schedule that is most appropriate for the child’s needs and that can reasonably accommodate visitation without disrupting things like schoolwork and extracurriculars.
Generally speaking, grandparents will not be granted express rights to a visitation from the child unless they directly participated in raising the child over a significant portion of the child’s upbringing.
When parents cannot agree upon a custody arrangement, the court will order mediation or refer you to a Court Clinic.
Parents Wishing to Assert Their Custody Proposal Need Evidence That It Is in the Child’s Best Interests
Because New Mexico weighs the child’s best interests so heavily, parents who wish to assert their preferences for custody will need to be prepared to document how their proposed arrangement fits the child’s best interests. Whether filing for a proposed custody agreement or asserting your position in mediation, it is often beneficial to have an experienced legal advocate assist you.
Marital Property and Property Division in New Mexico
Equal Division of Community Property
New Mexico is a community property state, meaning that its laws recognize most property acquired during a marriage as property jointly owned by each spouse. If the couple cannot come to an agreement as to the division of community property, the court will try to split it as equally (or equitably) as possible.
Limited Exceptions to Community Property Designation
Nearly all property acquired during a marriage is automatically assumed to be joint property. However, there are a number of exceptions. These exceptions include if the property was:
- Acquired before the marriage or after a legal separation or a decree of dissolution of marriage
- Declared to be separate property through a written agreement or by a valid judgment
- Gifted to either spouse or inherited
Most debts acquired during a marriage will be considered joint debt. This means that each side of the couple will be responsible for paying off their portion of the acquired debt unless it falls within an exception window. Exceptions that can designate debt as separate debt include:
- Debt assumed before the marriage or after a legal separation or a decree of dissolution of marriage
- Debt designated to a creditor as separate debt in a written agreement formed before the debt was assumed
- Debt determined by the court to be separate following a judgment or decree
- The debt created in relation to a tort one spouse before the marriage, after a legal separation or a decree of dissolution of marriage, or that was determined to have been a separate tort by a valid judgment
- Gambling debts
- “Unreasonable” debts acquired by one spouse while the couple was living separately and that didn’t benefit both spouses or their children, as determined by the court
Forming a Property Division Agreement
Property division can be made according to consent by both spouses if the court determines that the agreement will not be in the overwhelming interest of one party.
Matters of child custody and child support are considered separate from matters of property division, so no spouse can “exchange” a greater share of child custody for a greater share of the property.
Property divisions must be seen as reasonable and equitable by the court given the situation during the marriage as well as the likely situation following the marriage’s dissolution. In other words, if one spouse is likely to continue earning a much higher income than the other, the court is more likely to approve of a division that heavily favors the spouse earning much lower — or no — income.
If no agreement can be made, the court will attempt to divide joint property evenly to the extent it is reasonably possible to do so.
New Mexico Spousal Support (Alimony) Agreements
Unlike child support, spousal support is not automatically assumed to be needed following a divorce in New Mexico. The state does not use any formula or table to determine a needed spousal support amount, either. Spousal support is most likely to be awarded over a period of several months to two years.
Must Request Spousal Support and Demonstrate Need
Spousal support will only be ordered by the court if one party feels they have a need for it and can demonstrate that need with respect to a substantial burden the spouse will experience following the marriage’s dissolution. Examples include situations where the spouse has an advanced age, has poor health, lacks regular income, or is likely to experience a temporary hardship following the dissolution of the marriage.
The property separation agreement will also be held into account when considering the approval of a spousal support proposal. Individuals with substantial property holdings following the divorce may be expected to liquidate some of that property to temporarily supplement their income while they seek gainful employment.
The length of the marriage is also a major factor, as longer marriages are associated with a more understandable entrenchment within a certain lifestyle and working schedule. Put another way, if the couple was only married for a short period, the court is less likely to consider spousal support reasonable and necessary, especially over a period longer than a few months.
Long-Term Spousal Support (Alimony)
Transitional alimony may be awarded in situations where the spouse will need assistance to get established following the divorce, such as if the spouse did not hold a job during most of the latter part of the marriage.
Rehabilitative alimony may be awarded if the spouse can demonstrate that they have the need for further education, job training, or professional credentials — and the other spouse has the means to help pay for it.
How Child Support Is Calculated During a New Mexico Divorce
New Mexico assesses child support based upon a set formula calculated using both parents’ gross income. This formula is applied irrespective of any parent’s request, as it forms a baseline determination that will be compared to any requested deviation or amendment. According to New Mexico law, the deviation from the guideline must also be justified as part of the child support decree and final ruling.
Gross income includes not just wages but also any “tips, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, significant in-kind benefits that reduce personal living expenses, prizes and alimony or maintenance received.”
Deductions can be applied based on certain factors, such as any “reasonable and necessary” expenses incurred by someone who is self-employed.
The guidelines will also perform a total accounting of expected costs that encompass the child’s needs: food, clothing, shelter, also health and dental insurance, and child care during work times. The guideline amount may also include any “extraordinary” medical, dental, and educational expenses, as well as expenses related to long-distance visitation or time-sharing.
Both parents are automatically assessed; there is no presumption of child support based on gender, educational attainment, or any other sort of status. The formulation does not factor in any new spouse’s income should one of the divorced spouses get remarried.
Child support agreements generally last until the child turns 18 — or 19, if the child is still attending high school at that age. An agreement may be indefinite if a child has a qualifying physical or mental disability that impairs their ability to seek gainful employment.
Seek Legal Assistance in New Mexico Family Law Matters
The outcome of a divorce, child custody, or child support agreement will likely affect you far into the future. Courts hold a certain standard of evidence or argumentative weight when you wish to assert your own proposed agreement, especially if it deviates far from the expected norms of equal or equitable assumption of responsibilities.
Further, if you allow one party to make all the decisions, there is a large chance that the outcome of the divorce may be heavily against your own interests — and possibly even your children’s.
Because of the capacity for something to “go wrong” during divorce proceedings, it is in any spouse’s interests to at least review their case and evaluate proposed agreements pending the finalization of the divorce. Reviewing the child custody, property division, and child support agreements is especially important because these decrees are very difficult to have adjusted or annulled and then rewritten once they have been issued.
You can always feel free to discuss your situation and your personal goals with an Albuquerque attorney at New Mexico Financial & Family Law. We aim to make our clients feel comfortable and confident that their own interests and the interests of their children are held into account.
Schedule a consultation to discuss your case and learn about your legal rights and options when you call (505) 503-1637 or contact us online now.