Can I File for Divorce on the Grounds in Incompatibility in New Mexico?

In New Mexico, you can get a divorce on the grounds of incompatibility (a no-fault divorce) or on the grounds of fault (adultery, abandonment, or cruel or inhuman treatment).  However, fault divorces are rare, in the extreme.

Fault divorces require showing evidence of fault, and in many cases, it’s easier to seek a no-fault divorce due to incompatibility (also known as “irreconcilable differences”).

For this reason, no-fault divorces are much more common and considered the default for divorce in the state.  In fact, a judge would likely discourage any attempt to prove fault when it is unnecessary. 

What Are All the Possible Grounds for Divorce in New Mexico?

Incompatibility

This is the option for a divorce if you don’t want to claim your spouse was at fault. Your petition will state that the marriage is broken due to irreconcilable differences, and your spouse will have 30 days to respond.

In a few situations, their attorney may argue for more time due to circumstances, such as military deployment.

Although neither party has to prove fault in this type of divorce, if your spouse objects, a family court judge may ask you if your differences are permanently unresolvable and there is no hope of saving the marriage.

The following grounds are really hypothetical, because incompatibility requires no proof, and the division of property or support does not change even if one spouse is at “fault.”  A New Mexico Family Court would probably discourage, and perhaps prevent altogether, any party seeking to discuss the fault options below. 

Cruel or Inhuman Treatment

People sometimes seek this type of fault divorce due to abuse or cruelty by their spouse. If you want to file for this reason, your attorney will ask if you have any evidence of your spouse’s behavior.

If you have medical records or police reports, these may be useful. However, we also understand that a person might not want to report their injuries in some cases due to fear or concerns about further abuse.

We know how complicated these situations can be and will do everything possible to help you find evidence to prove your case. But in some circumstances, it isn’t possible to prove cruel or inhuman treatment, or a no-fault divorce may be a better option for various reasons.

When your spouse is abusive, the most important priority is getting yourself and any children you have to a safe place. If you need assistance, the city of Albuquerque maintains a list of domestic violence resources here, including emergency shelters.

Once you’re somewhere safe, please contact a divorce attorney to learn your options. We will answer your questions and do everything possible to help you find the best solution.

Adultery

You will also need proof to get a divorce because your spouse has cheated. Some people already have evidence of their spouse’s infidelity, including pictures, video, phone records, credit card statements, etc.

If you suspect your spouse is cheating but don’t have proof, please speak with an attorney. We can put you in touch with an investigator who will look into the situation discreetly.

Abandonment

In this situation, it’s necessary to show that your spouse left your home without consent – in other words, you didn’t kick them out or indicate you were fine with them leaving. You must also convince the court that they never planned to return.

Note that sometimes the judge will refuse a divorce on the grounds of abandonment.

Will You Get More Assets in the Divorce If You Can Prove Fault?

No.  New Mexico is a community property state, and the court will seek an equitable distribution of assets and debts if not a 50/50 split.

Moreover, if you are a candidate to receive alimony, that will be based on certain economic factors.  Whether the alimony paying spouse was at fault will not affect the amount of alimony.

You might feel you deserve more marital assets because your spouse cheated on you, but the judge is unlikely to agree. However, you can sit down with your Albuquerque divorce attorney and discuss which assets you prefer to keep.

We can negotiate with your spouse and their attorney during mediation to help you retain as many of your preferred assets as possible.

Depending on your goals for the divorce, we might suggest trading other assets, agreeing to less spousal support, or taking on more of the debts in exchange for keeping more assets.

It’s also helpful to remember that only marital assets are at stake. In most cases, assets that each person owned separately before marriage remain separate property during and after the divorce.

If you owned a car or investment property before you married, it should be safe from the division of assets. 

Similarly, debts incurred before marriage by one partner will also remain separate. If you add some debts after the marriage, your attorney will ask for financial records like credit card statements so they can determine how much debt is separate.

For example, if your spouse owed $3,000 on a credit card before the wedding, then charged another $3,000 while you were married, you will probably be responsible for about $1,500.

Will Proving Fault Affect Child Custody or Support?

Only if the fault negatively affects the child in some way. If your spouse cheated relatively discreetly, it is unlikely to affect your custody arrangement.

On the other hand, if they were very indiscreet to the point of flaunting their infidelity in front of the whole family, the judge might consider this harmful to the children. 

Likewise, if your child witnessed your spouse abusing you or if they abused or neglected the child, these are legitimate reasons for minimizing the spouse’s time with the child. However, you will need proof because an abusive spouse will likely lie and deny what happened.

If you believe your spouse is a danger to your child, please immediately speak with an Albuquerque family law attorney. We can seek a temporary custody order while building a case against your spouse.

Even in cases of abuse, a judge is unlikely to completely deny one parent visitation with the child unless the abuse is severe. They may order supervised visitation while also requiring the abusive spouse to attend counseling, addiction treatment, or other court-ordered interventions.

Child support is calculated using a formula that considers each parent’s income, the number of children, how much money each parent makes, and other relevant factors. It is unaffected by a fault in the divorce.

Get Help with Your Albuquerque Divorce

If you have questions or concerns about no-fault divorce, proving fault, or other issues related to a divorce, please contact New Mexico Family & Financial Law.

Call (505) 503-1637 today. Our team will meet with one of our experienced divorce attorneys, who will answer your questions and explain your options.