New Mexico Divorce Law
Divorce laws in New Mexico focus on providing a clear path to a dissolution of marriage involving an amicable agreement between both spouses. Eligibility is determined by the residency of at least one spouse, and if children are involved then the children should have residency in the state, as well.
New Mexico law does provide options for legal grounds for divorce, but one of these options — “incompatibility” — provides blanket grounds without the need for justification.
Before the Family Court will consent to a divorce agreement and issue a divorce decree, the couple will have to establish the following:
- Division of property (including debts)
- Child Custody
- Child Support
- Spousal Support (if requested)
Coming to an agreement on these areas may involve some amount of negotiating as well as a general understanding of New Mexico property laws and family law matters. Hiring an experienced New Mexico divorce attorney is the best way to ensure that your case can proceed smoothly and that your interests will be well-represented during negotiations. In the event that there is a dispute regarding one or more divorce matters, your attorney can assist you with coming to a practicable resolution — or, if needed, seek a reasonable judgment through a divorce trial.
Learning about New Mexico laws and preparing the necessary declarations is the first step. Find out more about how New Mexico handles divorce and how to protect your interests during a no-risk, no-obligation consultation with an experienced Albuquerque divorce attorney from New Mexico Financial & Family Law. Schedule your appointment now when you call (505) 503-1637 or contact us online.
How to File for Divorce in New Mexico
Someone wishing to be granted a divorce — referred to as a “dissolution of marriage” in New Mexico — must file a petition requesting dissolution with the appropriate New Mexico family court. The petition will contain paperwork and worksheets requesting a proposed plan for the division of property, and the following if applicable: a child custody agreement, a parenting plan, and a spousal support request.
The other spouse must then be served notice of the filer’s request, and they are given the opportunity to respond. They can approve of the filer’s initial plans, or they can request time to negotiate an alternative plan with their spouse. When the two spouses cannot come to an agreement, the court will order mediation, and only in cases of further dispute will they allow a trial.
Once all aspects of the divorce are finalized, the court will issue a binding divorce decree encompassing property division, child support, child custody, and a parenting schedule.
Eligibility to File for Divorce in New Mexico
For an individual to be able to seek a divorce in New Mexico, either that individual or their spouse must have had a residency in the state for at least the past six months, and they must be “domiciled” in the state. To be domiciled means you have a residence — either owned or leased — and you have the intention to remain in this residence for the foreseeable future.
If neither spouse can meet these criteria, the court will promptly dismiss your case upon the filing of the initial petition for dissolution.
When there are children under the age of 18 involved, the court expects that these children will have six months’ residency in the state, as well. If a child does not have residency, you may need to file a separate parenting plan or custody agreement in a court of the state where the child currently resides.
New Mexico Grounds for Divorce (No-Fault Divorce Allowed)
New Mexico provides several bases for getting a divorce, referred to as “grounds for divorce.” These include the following:
- Adultery — The filer of the petition can prove that their spouse has had sexual relations outside of the marriage.
- Cruelty and inhuman treatment — The filer can prove that their spouse was cruel or physically/emotionally/psychologically abusive to them or their children.
- Abandonment — The filer can prove that their spouse has lived separately from the family for a prolonged period without their consent and without regular contact or fulfillment of their familial duties, including financial support of the children.
- Incompatibility — The filer attests that the couple is “incompatible”, without the need for proof. This is New Mexico’s “no-fault” grounds for divorce.
The simplest pathway towards a speedy dissolution of marriage is by filing under the grounds of incompatibility. When using this method, the court will not request proof of incompatibility, and they will simply assume that because the filer requested a divorce that there is a sound reason for wanting to do so.
New Mexico Does Not Provide Means for Defense Against Divorce
Some states require specific provings to establish that the filing spouse has legitimate grounds for divorce. In these states, the other spouse may contest this allegation, effectively enabling them to request that the court blocks the divorce. Other defenses may be allowed in certain states, as well, such as by proving that the divorce will lead to unreasonable hardship for the couple’s children.
New Mexico does not permit any such defense against divorce. Once one spouse has decided to file their petition for dissolution of marriage, only they can retract the petition to halt proceedings. Effectively, there is no way for the other spouse to force the filer to remain in the marriage once they have come to their decision.
Mandatory 30 Day Waiting Period
New Mexico requires that a period of at least 30 days must lapse in between the receipt of the petition for dissolution of marriage and the issuance of a final divorce decree.
Given the need for discovery, an agreed-upon parenting plan, and a property division agreement, a divorce case is likely to take longer than 30 days to resolve under most circumstances, but nevertheless, those hoping for an extremely speedy resolution to their petition should know that they must wait at least 30 days for the divorce to be finalized.
Matters That Must Be Addressed in the Divorce Decree
Before the court will approve a petition for dissolution of marriage and finalize the divorce, both spouses must be able to present a single plan for each of the following matters:
- Property Division (includes debts)
- Child Custody
- Child Support
- Spousal Support (if requested)
Once these matters are decided upon, the court will issue a decree that binds both spouses to uphold their agreements or face penalties issued by the court.
In all divorce arrangements, the couple must decide on how to divide property and debts.
Divorces With Minor Children
In divorces involving children under the age of 18, the couple must submit a custody agreement, which determines how parents will have legal authority over making decisions in the child’s life, such as where they will attend school and what medical decisions will be made.
They must also submit a parenting plan, which establishes a schedule for where the children will reside, what activities the child will participate in, and how parents will promote the general welfare of their children by holding responsibility and supporting the child through their actions.
A child support agreement must also be formed, which will be based upon both parents’ income along with the general needs of the child.
Spousal Support (Alimony)
Spousal support is not automatically considered, and it must be requested. The court will only grant a request for spousal support if the petitioning spouse can establish a need and the ability for the other spouse to pay.
Most approved spousal support arrangements will be temporary and based solely on a specific need or an inability to obtain income.
Mandatory Mediation Before a Contested Divorce
If the couple cannot come to an agreement on all matters of concern in a divorce, then the court will order that both parties must attend mediation sessions in an attempt to work out an agreement.
During divorce mediation, both parties will present their positions and explore possible resolutions that might be to their satisfaction. Both spouses may need to concede certain priorities in an effort to come to an agreement, but being willing to make specific concessions is the best way to achieve your goals in other areas.
The couple should also note that the court will not be willing to approve of a divorce agreement that seems to fall unreasonably in one side’s favor. For instance, if the couple agrees to divide property in such a way that one party receives 99% of possessions, the court will want to see the justification of this and proof that the arrangement will not result in undue hardship for the other spouse. Similarly, the court will only approve of child custody (parenting plan) arrangement that appears to be in the best interests of the children.
Refusing to come to an agreement may result in additional hearings. If the couple continues to be unable to reach an agreement, the divorce case may proceed to a trial. During the trial, both parties will present their positions, their proposed divorce agreements for each priority matter, legal justifications for these proposals, and evidence or documentation needed to establish the validity of their position. After lengthy hearings involving both sides — potentially as well as the statements from expert witnesses like child psychiatrists — the court will adjudicate on the proposed agreements and come to a final ruling on all matters.
The court prefers not to decide upon a divorce agreement unilaterally. It will prefer that the couple come to an agreement outside of court, and it will attempt to strongly cater to the most-reasonable proposal that seems to be in everyone’s best interests, including the children’s. Only in rare instances will the court reject proposed agreements and issue its own arrangement through the divorce decree.
Compliance With the Divorce Decree, Filing Appeals and Making Modification Requests
Once a divorce decree is issued, it is legally binding. A party who refuses to follow the word of the decree may face contempt of court charges, fines, wage garnishment, property seizure, imprisonment, and other consequences.
An individual who feels that the court erred in judgment when approving of a divorce agreement or in issuing its decree can appeal the court’s conclusions through a divorce decree appeal. Appeals are only granted in cases where the court applied the law incorrectly; new evidence and information may not be presented during an appeal.
It is more likely for a party who is unsatisfied with the divorce decree to be able to have a modification granted. A divorce decree modification can amend the decree to make changes for areas like the child custody agreement, division of property, the payment of spousal support, etc. Modification requests are most likely to be granted when the court sees the request as reasonable and in relation to a specific hardship or unexpected life situation change.
Get Help Understanding New Mexico Divorce Laws and Asserting Your Rights With an Experienced Attorney
New Mexico Financial & Family Law has over two decades of experience assisting clients with matters of divorce. We are prepared to help you form an amicable divorce agreement, and we can also assist with appealing a divorce decree, requesting a modification, or adjudicating your divorce in a trial.
Taking the first steps is hard, but having a legal advocate and counselor can make it that much easier. Learn about the laws that may affect your divorce and how to seek an outcome that fulfills your most important goals during a no-obligation consultation. Call (505) 503-1637 or contact us online to schedule your appointment now.