Does New Mexico Have Any Residency Requirements for Filing for Divorce?

New Mexico requires that you or your spouse have lived in and maintained a “domicile” in the state for six months before filing a divorce petition in the county where you or your spouse live. Your attorney can help you ensure that all the forms are filled out correctly and filed in the appropriate court.

You can be considered to have a “domicile” in New Mexico if any of the following are true:

• You are physically in New Mexico and maintain a home there.
• You plan to live in New Mexico permanently or indefinitely.
• You’re a US military member stationed in the state for at least six months.
• You’re in the US military and lived in New Mexico for at least six months before you or your spouse were stationed on a base outside of the state, but you plan to return to New Mexico and stay there permanently or indefinitely.

What is the Non-Resident Divorce Process in New Mexico?

After determining if you meet the residency requirements listed above because your spouse is a resident, you will need to consider if you have “grounds” or reasons for a divorce. These can be either fault-based or non-fault-based. In New Mexico, the following are considered acceptable grounds for a divorce proceeding:

• Incompatibility. This is the typical reason for a no-fault divorce. It means no one is at fault, but you have too many conflicts or disagreements to continue the marriage. While you don’t have to prove that your spouse did anything wrong, you do have to show the court that your differences are irreconcilable and there is no hope for the marriage to be saved.
• Cruel and inhuman treatment. Cruel and inhuman treatment may be grounds for divorce if your spouse has been physically, emotionally, or verbally abusive. Your attorney will help you determine if you have enough evidence to support the court approving your fault-based divorce petition.
• Adultery. You will need proof of your spouse’s infidelity to seek a fault-based divorce for this reason. If you don’t have sufficient evidence, your lawyer may suggest using an investigator to learn more about your spouse’s extramarital activities.
• Abandonment. This requires showing that your spouse left your shared residence although you didn’t want them to – if you asked them to leave, you probably do not have grounds for a fault divorce based on abandonment. Additionally, you’ll need to prove they intended to stay gone permanently. In some cases, the judge won’t grant a fault divorce for abandonment if your spouse continues to provide financial support after leaving.

What to Do When Your Spouse Filed for Divorce

The first thing you should do is speak with a New Mexico divorce lawyer, who will review the divorce papers you’ve been served and ask about what you want to do. The petition will contain your spouse’s reasons for seeking a divorce and what they want regarding asset division, child custody, etc. There are several issues you will need to discuss with your lawyer before they draft a response to the petition:

• Do you agree with your spouse’s reasons for the divorce? When the reason is “incompatibility,” often the spouses are in agreement that the marriage is irrevocably broken. However, if your spouse has claimed you are at fault due to adultery or other reasons, and these charges are not true, you may want to contest the divorce on these grounds. However, the court will not be in favor of, and may not tolerate, an attempt to prove fault, even though it is in the statute.  Incompatibility is usually the only basis used.
• What do you want from the divorce? You should be prepared to go over all marital assets with your attorney and explain how you would like them divided in an ideal situation – making a list beforehand is a great idea. Remember that New Mexico courts generally try to distribute assets equitably in the divorce settlement, so if you’re expecting to keep the majority of assets, that’s unlikely to happen. Instead, focus on which assets are most important to you so your lawyer can work to help you hang onto those.
• You’ll also need to discuss any marital debt and how you’d like to resolve that.
• Do you want spousal support/alimony? Is your spouse requesting support from you? If your spouse makes more money or has financially supported you for most of the marriage, there is a good chance the court will agree to some spousal support. Your lawyer will discuss a reasonable amount to request and what type of support you might ask for. If your spouse is seeking support, you should talk about how much you’re willing to provide.
• If you have minor children, you’ll need to discuss their custody, financial support, and how you and your spouse will co-parent following the divorce.
• If you can work out the details of your divorce in mediation – as many couples do – you and your spouse will have to agree on a parenting plan. This document is a guide to handling potential conflicts that may come up as you raise your child. You’ll tell your lawyer how you feel about joint custody, how you want to make decisions about healthcare, education, and other parenting issues, how much you want in child support, who should pay for various expenses, where the child will go to school, etc. Your attorney will then work to help you meet these goals.
• If mediation efforts fail and your divorce is decided by the court, the judge will make many of these decisions for you, so it’s usually in the best interest of both spouses, and the children, to try to work things out in mediation. However, your lawyer will fight for your rights in court if this isn’t possible.

How to Get a Divorce in New Mexico

The process varies depending on how much or how little you and your spouse can agree on. For an uncontested divorce, you can simply have your attorney file your response agreeing to the divorce on your spouse’s proposed terms. (You have 30 days to respond to the initial complaint once you are served.) After filing the paperwork, you will only need to attend a court hearing if the judge requires one.

The Divorce Process in New Mexico for a Contested Divorce

If your divorce is more complicated, your lawyer will file paperwork contesting it, and you will attend at least one hearing, but possibly multiple hearings, to discuss the issues. The judge may order you and your spouse to attempt to work things out in mediation. If this is successful, you’ll both sign an agreement and file it with the court, and in most cases, the judge will approve it. If the judge believes there is some issue with the agreement, they will discuss it in a hearing.

If you cannot come to an agreement in mediation, you will return to court and argue the issues before a judge. This can be stressful, and many people fear it will upset their kids or that airing their issues in court will be embarrassing. For these reasons, most couples try to reach an agreement in mediation. However, if your spouse simply won’t budge on an important issue, it may be necessary to seek a judgment in court.

How Can You Find Out More About New Mexico Divorce?

Even if your divorce is fairly simple and uncontested, a New Mexico divorce lawyer can help to ensure nothing is overlooked and that your best interests are served. If you’re considering a divorce or have been served with divorce papers, please contact New Mexico Financial & Family Law for a consultation. We’ll answer your questions and assist you with continuing the divorce process.