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Marital infidelity can be devastating to someone’s mental health and, potentially, their overall outlook on the world. When two people enter the bond of marriage, they pledge to be faithful and honest towards one another. A spouse who chooses to cheat shatters that vow and the outcome affects the lives of their spouse and their children.

While all these statements are true, what is also true is that the state of New Mexico does not recognize adultery as a crime. There is no statutory language indicating a consequence or punishment for adultery, and family law statutes do not refer to infidelity in any consistent manner.

Further, New Mexico’s “no-fault” divorce system means that the couple does not need to make any particular provings in order for the divorce to be recognized as valid. “Incompatibility” is a valid reason for divorce that will not be challenged in any way by the family court.

With that said, infidelity may be a piece of a larger overall pattern of abuse, neglect, or anti-social behaviors that could be having an effect on the family. If a parent feels that another parent is unfit to receive custody or visitation rights because their actions represent a danger to the well-being of children, infidelity can in some cases become a part of a legal argument to that end. Refer to a New Mexico divorce lawyer for more guidance and advice on this matter as it pertains to your specific case.

Cheating Is Considered Immaterial for Many Aspects of Divorce, Including Child Support and Spousal Support

In most divorce cases, the behavior of the spouse only matters for two main reasons:

  1. Their behavior is being listed as a part of grounds for divorce
  2. Their behavior represents a pattern that makes them unfit to be a parent

As mentioned earlier, there is no reason to establish grounds for divorce in New Mexico. Allegations of infidelity, therefore, can be seen as an irrelevant point to raise during divorce proceedings. In fact, the court may actively seek to avoid combative allegations or intimate discussions of the private lives of the couple getting divorced in open court. Instead, the court will prefer to focus on moving the case forward by deciding on the equitable division of property and other important matters.

None of this is to say that infidelity is not considered harmful to the sanctity of a marriage, but rather that because the marriage is allowed to dissolve for whatever reason, the courts will prefer not to dive into a topic they see as immaterial. The only reason the behavior could be seen as material, for most cases, is in situation #2, which will be discussed further in the section below.

As for other aspects of divorce, including division of property, spousal support (alimony), and child support, adultery is not seen as a valid reason to “punish” the cheating spouse with higher payments or less property. Instead, the state of New Mexico makes determinations using legal tests of equity and appropriateness.

For example, alimony is only awarded in situations where the person requesting the payments can demonstrate a need and the other spouse’s ability to pay. Likewise, child support is based on the estimated care costs of raising the children, the amount of time each parent will spend caring for the child, and the earnings of each parent. Neither scenario will commonly involve the court deciding to award more or less money based on the sexual activities of either spouse.

Cheating Can Sometimes Be Used as a Component of Child Custody, Visitation, and Timesharing Agreements

New Mexico family law courts view it as important for a child to spend equal amounts of time with each parent and have each parent contribute equally to their upbringing, to the extent possible. However, if a parent feels they have legitimate reasons for a parent to spend less time with their child, or that they shouldn’t have a say in the major decisions for the child’s life, then the court is willing to listen to any provided evidence.

New Mexico Law (N.M. Stat. Ann. § 40-4-9) states that the following areas will be explored when determining whether a proposed custody/timeshare arrangement is appropriate:

  • Each parent’s preferred custody plan
  • The relationship between the child and each parent
  • The child’s preferences (especially if the child is 14 or older)
  • The child’s activities for school, at the home, and in the community
  • The mental and physical health of each parent, as well as each’s overall fitness to provide, nurture, and care for their child

That last bullet is the most relevant one to the topic. It gives room for a parent to argue that their spouse does not have the mental, emotional, and/or financial stability needed to have the child in their care. If a parent can establish reasons that it is not in the best interests of the child to spend time with their unfit parent, then the court may be willing to grant a larger share of custody/visitation to the parent making the allegations, potentially including 100% custody.

Note that it is up to the parent making allegations to establish why they feel the other parent is unfit. That includes being prepared to establish why cheating is relevant to that argument. Infidelity by itself may not form the basis of a compelling enough argument for unfitness, but it can form a piece of the overall puzzle. If the other parent chose to spend time and money in the company of the person they were having an affair with, for instance, this can be used to help establish a pattern of neglect. Even more relevant would be any actual harm or danger the child was placed in as a result of this “side relationship”. For example, if the adulterous couple were to habitually abuse illegal narcotics during times when they should be caring for a child, that would be an example of the adulterous parent placing their child in harm’s way.

Anyone attempting to argue that the other parent is unfit must be prepared to provide evidence and to provide a legally compelling reason that the court should choose their preferred custody/timeshare plan. Working with an experienced New Mexico family law attorney can help, especially in cases where a parent wishes to obtain full custody and deny the other parent visitation.

Build a Strong Case With Proven New Mexico Divorce Attorneys

Adultery matters to the people it affects, and it can matter to any children aware of the situation, but it is up to the spouse to explain why it should matter to the court. If someone is seeking a larger share of custody or time spent with the children, then the information they provide about their spouse’s lifestyle could be seen as relevant. Getting this argument across can take some investigation, documentation, and thorough knowledge of the law, however.

New Mexico Financial & Family Law has heard from hundreds of individuals in the midst of divorce or custody battles, and the stories told in our offices have been both disheartening and frustrating. We are prepared to listen, and we want to help you achieve the outcome you seek for your divorce, especially as it concerns your children’s best interests.

Find out more about how evidence of adultery can affect your case and what factors the court weighs when evaluating a proposed divorce agreement during a no-risk case review. Call (505) 503-1637 or contact us online to schedule a no-obligation appointment today.

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