Do Military Personnel Need to Take Any Extra Precautions When Filing for Divorce?
Divorce proceedings are mostly handled based on state laws, but in some cases, military service may slow down the divorce process. You can file for divorce in New Mexico if you meet one of the following criteria:
- The military member has been stationed continuously in the state for at least six months.
- The military member’s spouse has lived in the state for six consecutive months before the divorce filing.
- Either the military member or their spouse lived in the state for six months right before joining the military and is presently stationed outside the state but intends to return here to live permanently.
How Long Does a Military Divorce Take?
How long a military divorce takes depends on multiple factors. First, you must speak with an attorney about your reasons for the divorce and what you want regarding asset distribution, child custody, spousal support, etc.
Once your lawyer has a clear idea of your needs, they will draft a divorce petition and have your spouse served. This point is where the time frame can change depending on the circumstances.
If your spouse is in New Mexico, serving them will probably be a quick process (unless they are difficult to find for some reason). On the other hand, if your spouse is deployed, it may take a bit longer.
The person serving divorce and other legal papers must follow the local laws of the recipient’s current location. If your spouse is deployed overseas, we may have more difficulty serving them with papers.
In some cases, we may need to file a motion with the court to serve your spouse in a “reasonable way based on circumstances. We usually find a way to serve the spouse stationed in another state or country.
In most New Mexico divorce cases, the recipient has 30 days to respond to the petition for divorce. However, if a military member’s service prevents them from responding in this time frame, they may be able to get an extension to 90 days under the Servicemembers Civil Relief Act (SCRA).
The SCRA also prevents a default divorce if the military member hasn’t responded promptly. However, there are limits to the SCRA – it does not protect servicemembers from sanctions or prosecution if they refuse to pay child support.
Other Factors Affecting How Long a Divorce Takes
Military service aside, there are other reasons a divorce may take more or less time. An uncontested divorce, where both parties agree on why the marriage is ending and how they should resolve it, is almost always much faster than a contested divorce.
If you are served with divorce papers and have no objection to anything in the petition, you can simply sign and return them. You should, however, review them with an attorney first to be sure you understand all the implications.
In this situation, your divorce will probably be finalized within 30-90 days, depending on how busy the court is.
But in many cases, the spouses disagree about issues like assets and debts, child custody, or child or spousal support. Those seeking a divorce based on faults such as adultery, abandonment, and cruel or inhuman treatment may also have a contested divorce.
When the divorce is contested for any reason, the court will schedule one or more hearings, and often a judge will advise the parties to attempt to work out their differences in mediation. This process may take more or less time, depending on how quickly the spouses can come to terms.
A willingness to cooperate on the part of both spouses certainly helps speed up mediation. However, the time it takes depends on how many issues must be settled.
If you and your spouse have many marital assets to distribute or must agree on a parenting plan for minor children, you’ll need to spend more time discussing these issues.
Once the spouses have come to an understanding, their attorneys will draft an agreement, the spouses will sign it, and it will be filed with the court.
If the spouses can’t agree in mediation, the court will step in and decide the divorce terms, which gives both parties less control over what happens. For this reason, many people are incentivized to try to resolve their issues in mediation.
However, your lawyer will advocate for your needs if a court case is necessary.
How to File for Divorce in the Military, and How Does Divorce Work in the Military?
You will need a New Mexico divorce attorney who can file your divorce petition per state laws.
Your divorce will proceed through the New Mexico court system. If you need additional time to respond due to your military service, your lawyer can assist you in filing the necessary paperwork.
They can also request that you be allowed to appear for court hearings by phone or video if you are stationed outside the state. In many cases, judges will allow virtual appearances.
New Mexico courts aim for an equitable distribution of assets and debts in a marriage dissolution. For the most part, this is unaffected by your military service, except for your military pension, which is considered community property in New Mexico.
However, only the portion of your pension you earned during the marriage is community property; you should retain everything you earned before and after your marriage.
What About Child Custody?
New Mexico courts decide custody cases with the child’s best interests in mind and generally try to ensure the child spends time with both parents. The fact that you are a servicemember should not prevent you from having shared custody of your child.
However, the court also considers the “status quo” and favors consistency and predictability in your child’s life.
If you are deployed or out of town most of the time because of your military duties, the court may decide that your child should primarily live with your spouse and visit you as often as possible.
If you are stationed in New Mexico and are consistently available, you will be more likely to achieve equal custody if that is your goal.
Regardless of how the timesharing is decided, your lawyer can argue for your right to be consulted on major decisions about your child’s health, education, and well-being.
Child support in New Mexico is typically based on timesharing (the percentage of time your child spends with you versus their other parent) and gross income.
If your child spends more than 65 percent of their time with the other parent, you will pay more support. If the child mostly lives with you, then their other parent should be paying child support.
Contact a New Mexico Divorce Attorney Today
If you have questions or concerns about your military divorce in New Mexico, please call or visit New Mexico Family & Financial Law for a consultation today.
Call (505) 503-1637 for our team to review your case, answer your questions, and file your divorce petition if you wish to proceed.
We will continue supporting you and fighting for your rights throughout the divorce process.