Spousal Support (Alimony)
New Mexico courts will award spousal support on a case-by-case basis. Unlike other states, spousal support is not automatically considered as part of divorce proceedings. In order for a party to receive spousal support, they must directly request it. They must also justify the reasoning behind the request, such as by indicating a spouse’s temporary or indefinite need for support following the dissolution of marriage.
Generally speaking, the state of New Mexico tends to grant spousal support only in situations where the marriage has had an extended duration and the newly divorced former spouse can demonstrate a definite need for support. Spousal support agreements are likely to only be for a temporary period unless the spouse has been married for an extended period (around 20 years) and the party requesting support can demonstrate that they are unable to obtain (or would have extreme difficulty obtaining) the income needed to maintain a reasonable standard of living. Exceptions exist for high income spouses or spouses who are near retirement age
Because of the circumstantial nature of spousal support and the requirement to include clear and convincing reasoning, having an attorney help prepare your request for spousal support can provide many benefits. New Mexico Financial & Family Law can assist you with this and any other stages of the divorce process. Our experienced attorneys are familiar with the courts’ reasoning and the types of documentation they expect when deciding upon a spousal support agreement.
Learn more about requesting spousal support, the documentation you may need, and how to increase your chances of reaching your goals when you speak to a lawyer during a no-obligation consultation. Call (505) 503-1637 or contact us online to schedule your appointment today.
Types of Spousal Support Awarded in New Mexico
New Mexico law (N.M.S.A. § 40-4-7) allows for several types of spousal support. These include:
Rehabilitative Spousal Support
The support that can assist a divorced spouse with raising their income earning potential and becoming self-supporting through school, job training, or on-the-job programs like internships.
A rehabilitative support plan may be contingent upon the completion of a specific program, such as benefits that end once the recipient has received a degree.
Transitional Spousal Support
This type of support aims to get the recipient “back on their feet” or help them through a transitional period. Common circumstances include a spouse who is looking for a new job, is waiting on a house to sell, or who will be moving to a completely new area.
Lump-Sum Spousal Support
The court may award a single sum of money to a spouse if the spouse can demonstrate the need for that exact amount. This sum may be delivered in one payment or through a series of installments.
Many installment agreements will terminate upon the death of the recipient; however, there are some agreements that must continue even after the recipient’s death.
Indefinite Spousal Support (Alimony)
Some divorce situations will cause an individual to experience hardship if they were not to receive support from their former spouse. In these cases, the court may grant indefinite spousal support payments through the remainder of the recipient’s life.
Indefinite spousal support arrangements are uncommon in New Mexico, and they typically only occur in certain situations, such as if the couple had been married for 20 or more years and the person requesting support would be at an advanced age or would have a health condition that would make it difficult for them to earn an adequate income.
Division of Retired Military Pay or Benefits
The 1982 Uniformed Services Former Spouses Protection Act (USFSPA) treats military retired pay as marital property to be divided between spouses. In many cases, a spouse may be able to request a portion of this income as a benefit during the division of property. This benefit is separate from any spousal support agreements.
How Is Spousal Support Typically Paid?
Lump-sum agreements are paid all at once or in installments.
In many cases, spousal support payments may be deducted directly from the payor’s income checks.
Can Spousal Support Agreements Be Modified?
In most cases, a spousal support agreement can be modified once a decree or court ruling has been issued. An individual requesting a modification will have to base their request upon sound reasoning, such as a dramatic change in circumstances akin to losing a job or experiencing a prolonged health crisis.
When a lump sum agreement has been approved, it cannot be modified. This includes lump sum arrangements paid in installments.
Some spousal support agreements will have specific clauses making them non-modifiable. This status cannot be overturned except in extreme circumstances, such as if an appeal is filed alleging that the law was applied incorrectly in approving the support agreement.
Is There a Spousal Support Formula in New Mexico?
New Mexico laws do not require the courts to apply a set formula, nor a calculation, nor the use of any other device like a table.
However, the New Mexico Supreme Court has issued Alimony Guidelines that recommend a set formula for settlement purposes only. The courts will not base any award on this formula if it goes to court, but the parties are encouraged to consider this formula for settlement purposes.
The formula basically assesses both parties’ income following the dissolution of marriage.
The recommended formula is as follows:
- In cases with no child support agreement: “30% of Payor’s Gross Income minus 50% of Recipient’s Gross Income”
- In cases with a child support agreement: “28% of Payor’s Gross Income minus 58% of Recipient’s Gross Income”
Again, these formulas are only used for settlement purposes, and they are not used by the court at an actual trial on alimony.
What Factors Go Into Determining New Mexico Spousal Support?
If the spousal support issue is not settled, New Mexico law (N.M.S.A. § 40-4-7 (E)) outlines several factors that a judge presiding over a case must consider when evaluating whether a proposed spousal support agreement is appropriate — or whether spousal support is appropriate at all.
Three main tests can be summarized from these factors:
- The length of the marriage: Courts are less likely to consider a support request reasonable for marriages of a shorter duration, especially in reference to the amount requested and duration of the proposed agreement.
- The requestor’s need: Need encompasses the requestor’s basic survival requirements, which may include medical insurance. The requestor’s ability to earn an income is also a factor, as well as their general health. Their standard of living during marriage is also considered.
- The paying spouse’s ability to pay: The court will not approve an agreement that is impossible for the other spouse to pay or that inflicts an unreasonable hardship upon the proposed payor.
There is a 10-factor balancing test that courts use when deciding whether to award alimony after a trial. The existence of the ten-factor test gives courts tremendous discretion and makes alimony awards difficult to predict. The specific factors the court will consider are described in N.M.S.A. § 40-4-7 (E):
- (1) the age and health of and the means of support for the respective spouses;
- (2) the current and future earnings and the earning capacity of the respective spouses;
- (3) the good-faith efforts of the respective spouses to maintain employment or to become self-supporting;
- (4) the reasonable needs of the respective spouses, including:
- (a) the standard of living of the respective spouses during the term of the marriage;
- (b) the maintenance of medical insurance for the respective spouses; and
- (c) the appropriateness of life insurance, including its availability and cost, ensuring the life of the person who is to pay support to secure the payments, with any life insurance proceeds paid on the death of the paying spouse to be in lieu of further support;
- (5) the duration of the marriage;
- (6) the amount of the property awarded or confirmed to the respective spouses;
- (7) the type and nature of the respective spouses’ assets; provided that potential proceeds from the sale of property by either spouse shall not be considered by the court unless required by exceptional circumstances and the need to be fair to the parties;
- (8) the type and nature of the respective spouses’ liabilities;
- (9) the income produced by property owned by the respective spouses; and
- (10) agreements entered into by the spouses in contemplation of the dissolution of marriage or legal separation
How Does Spousal Support Affect My Taxes?
Prior to the Tax Cuts and Jobs Act of 2017, the recipient of spousal support payments was required to declare the payments as income. The payor was able to deduct the payment amounts from their total income.
After the passage of the Act, both were reversed. Now, the recipient does not have to declare the income, and the payor is no longer allowed to deduct the payment amount from their declared gross yearly income.
How Can Someone Request Spousal Support During a New Mexico Divorce?
The New Mexico forms for dissolution of marriage include a section for a possible spousal support request, including directions for providing justification and documentation.
It is recommended to have assistance from an attorney experienced in New Mexico divorce law when preparing these forms. At the very least, having a lawyer review them prior to filing can help you strengthen your chances while avoiding the most common mistakes.
What Can I Do If My Former Spouse Stops Paying Support?
Just like child support, the courts in New Mexico take spousal support agreements and decrees very seriously. If an individual stops paying or refuse to pay the agreed-upon support amount, the recipient can file a motion for enforcement. If the motion is granted, the court may garnish the payor’s wages, award attorney’s fees to the recipient, or enforce the agreement through property liens, fines, or jail time.
Get Assistance Seeking Spousal Support From New Mexico Financial & Family Law
Our firm is dedicated to helping clients meet their goals. We understand divorce can be a tumultuous time with many uncertainties. Individuals who would experience hardship deserve a fair chance at receiving spousal support. They can increase their chances by working with a proven family law attorney, one familiar with the court’s requirements and expectations.
Find out how others have successfully obtained spousal support during a risk-free, no-obligation consultation. Schedule your consultation when you call (505) 503-1637 or contact us online today.