How does divorce between same-sex couples work in New Mexico?
In 2013, the New Mexico Supreme Court ruled that same-sex couples have the right to get married in New Mexico. In that regard, same-sex divorce in New Mexico operates along the exact same grounds as a divorce between a male and female couple.
Upon the filing of a petition for dissolution of marriage, or “divorce papers”, the courts will request that both spouses come to an agreement regarding the equitable separation of property. A spouse can request spousal support (alimony) upon certain grounds, as well, provided they can demonstrate a particular need.
New Mexico does not restrict the adoption of children by two same-sex parents, and it also has no laws that would disallow a lesbian couple from having a child born through in vitro fertilization, in which case both spouses would be recognized as the legal parents of the child. Child custody and child support matters could, therefore, arise during a divorce between a same-sex couple just as they would for a mixed-sex couple.
While same-sex married couples won’t have any unique considerations during their divorce, it is important to consider the general expectations of what will go into a divorce decree. Review all of the aspects of a New Mexico divorce, and then reach out to a New Mexico divorce attorney if you have any questions or would like representation from an experienced family law firm.
New Mexico Is a “No Fault” Divorce State
New Mexico provides many reasons as grounds for divorce, and one of them is “incompatibility.” There is no need to prove this, and the other spouse cannot object to a divorce filed upon these grounds. This arrangement means that a same-sex couple in New Mexico can legally file for divorce for nearly any reason.
6-Month Residency Requirement Prior to Divorce
In all cases, at least one spouse will have to have maintained residency in the state of New Mexico for at least six months prior to the filing of a petition for dissolution of marriage.
What Goes Into a Same-Sex Divorce Decree?
Before a divorce can be granted, the couple will have to submit a divorce decree for approval by the court. Generally, the court will expect the following components to be described in the divorce decree:
- Division of assets — All community property should be divided as equitably as possible between the two divorcing individuals
- Spousal support — Can be requested in cases where a spouse can demonstrate a specific need and an ability for the other spouse to pay
- Child custody — Courts will prefer an arrangement where both parents have custodial rights (i.e. legal say in the child’s upbringing) unless one parent is unwilling or unable to do so
- Child support — If both spouses are legally considered to be the parent of the child, one spouse may be required to provide child support
Division of Marital Assets
Nearly all property acquired during the course of the marriage is considered “community property,” with very few exceptions. This includes all physical property, real estate, assets, accumulated income, and most debts.
Since dividing all assets perfectly in two is largely impossible, the couple will have to determine an arrangement that meets the standard of fairness as closely as possible. For example, if one member of the couple is going to keep the marital home property, then the other member should receive a larger proportion of liquid, physical, or investment assets to account for the difference.
In many cases, the court is willing to honor a less-than 50/50 split if it can be demonstrated why the arrangement is fair, ethical, and justifiable for everyone involved. Further, both spouses would have to agree to this arrangement.
Note that New Mexico does not recognize “common law” cohabitation marriages. Therefore, many same-sex couples that were for all intents and purposes “married” prior to the 2013 law changes legally recognizing same-sex marriages will only have the property they acquired since the legal marriage is considered as community property. Unfortunately, this may mean that assets acquired prior to the legalization of gay marriage in New Mexico are not protected under community property rules.
Spousal Support for Same-Sex Couples in New Mexico
In cases where one spouse was dependent on the income of the other and requires support for living expenses or other costs, then the court may approve spousal support (alimony) payments.
Spousal support in New Mexico is situation-dependent, and it must be requested by a divorcing spouse who can demonstrate a need. In the vast majority of cases, spousal support will only be granted on a temporary basis. The types of spousal support in New Mexico include:
- Rehabilitative spousal support, which aims to help the spouse increase their earnings potential through school, job training, or certain work experiences
- Transitional spousal support, which aims to provide the spouse with funds until a certain condition is met, such as pending the sale of the marital home
- Lump sum spousal support is a certain amount that may be payable in installments
- Indefinite, ongoing spousal support, long term, indefinite, and modifiable, spousal support is most appropriate in long term marriages and where there is a disparity of income
Child Custody and Child Support for Same-Sex Divorce
If a child was adopted by both parents or born into the marriage, then both sides will have to submit a child custody agreement, along with a parenting plan and timeshare arrangement. Further, if a child only has one legally designated parent but the other spouse feels they have contributed significant financial, emotional, and psychological support to the child, the court may recognize their rights as a parent in regards to custody and visitation, in many cases (see Chatterjee v. King).
In most cases, New Mexico courts will prefer arrangements that preserve custodial rights for both parents. This means both parents have equal input for life-changing decisions, including where the child attends school, what doctor they will see, what health decisions will be made, and what religious practices the child may follow. If one parent feels the other parent should not have equal custodial rights, the objecting parent must be prepared to show how joint custody would negatively impact the child.
In New Mexico, having joint custody is different from having joint visitation rights. To determine where and with whom the child will spend their time, the parents will have to develop a parenting plan and a timesharing schedule. The schedule will aim to give parents roughly equal time with the children so long as their lives will not be disrupted. In cases where sharing equal time is not possible, such as if one parent lives far away from the child’s school, then an appropriate schedule will be determined.
Child support is calculated based upon set formulas, meaning it is automatically computed as part of the divorce arrangement. The child’s total cost of support is calculated, and then each parent’s direct contributions are considered based upon the share of time spent with the child. The parent with the higher direct support obligations will then receive supplemental financial support from the other parent, according to scheduled payments.
Move Onto the Next Phase of Your Life With New Mexico Same-Sex Divorce Attorneys
New Mexico Financial & Family Law recognizes that even if the law aims to treat all married couples as equal, same-sex marriages may have unique considerations involved. If you want legal representation and assistance from proven, experienced New Mexico divorce attorneys, we are here to provide you with our expertise.
The ability to move on past a divorce ultimately depends on the workability of the agreements contained in the divorce decree. It is, therefore, extremely important to get all of the details right. If not, then the divorce decree may ultimately have to be appealed or modified so that each former spouse’s legal rights are respected.
Our firm is prepared to assist you and provide the full extent of our legal knowledge and experience for your case. To learn how we can help you, call (505) 503-1637 or contact us online to schedule a no-obligation case review.