What is the difference between divorce and legal separation?
The concepts of divorce and legal separation can differ greatly from state to state. In New Mexico, a “legal separation” is almost completely indistinct from a divorce, which is called a “dissolution of marriage” in the state. Like a divorce, a legal separation will involve the division of assets, determination of child custody, approval of a visitation/timeshare schedule, and financial decisions like spousal support (alimony) and child support.
In short, legal separation involves every aspect of a divorce in New Mexico except for the actual marriage being dissolved. Some couples decide to preserve the legal status of their marriage while still undergoing a formal separation. This can have benefits, including being able to be covered under the spouse’s insurance. Many parents may decide to preserve the legal status of the marriage for the sake of their children, as well.
Importantly, while a couple that is divorced can legally remarry, a legally separated couple cannot.
If you have any questions about legal separation vs. divorce in New Mexico or would like to explore your options, speak to a New Mexico family law attorney soon in order to determine what the best path forward might be.
A Legal Separation Is Almost the Exact Thing as a Divorce in New Mexico
Nearly every state has unique rules surrounding its divorce procedures. Some will provide a framework for couples to no longer cohabitate while still preserving all other aspects of the marriage, which is often referred to as a “trial separation”. The state may also require the couple to try out being separate before committing their divorce — although many of these laws have since been phased out. Still, in these states, a trial separation can be seen as taking “baby steps” towards a divorce, where many of the legal and logistical aspects have been worked out but matters like asset division have not been finalized.
New Mexico does not use any of these legal frameworks. Instead, it provides the legal separation procedure for couples that wish to finalize every aspect of their separation but still remain married “on paper”. The arrangement can allow for couples to co-manage certain legal or business arrangements as they had before, especially when it comes to raising their children as a single legal family unit.
However, at the same time, New Mexico considers a legal separation as a distinct category of divorce, not a “baby step” towards it. What that means is that, if a couple decides to divorce after being legally separated, they will have to go through the entire divorce process again, including all filing expenses. It is possible that the divorce can be expedited using the legal separation arrangement as a basis for the divorce decree, but there are zero guarantees that a couple that is legally separated will have an easier time getting divorced.
What Are the Advantages of a Legal Separation in New Mexico?
Primarily, the main advantage of a legal separation in New Mexico is that the marital status of the couple remains unchanged. This can be important for business or tax filing reasons. The couple may also wish to remain legally married so that their children can have the legal status of being raised by just one couple.
Another common reason for a couple to undergo legal separation is that the marital status allows the spouse to remain on the other spouse’s insurance coverage. This is particularly important if one spouse is chronically ill and would lose insurance coverage after a divorce.
On top of these reasons, there are social, ethical, or religious convictions that may compel a couple to get legally separated instead of divorced in New Mexico. The couple will have to consider the pros and cons of each option in order to arrive at the best conclusion for their own goals and personal needs.
Filing for a Legal Separation in New Mexico
Unlike divorce, there is no residency requirement in order to file for legal separation in New Mexico. In a divorce, one spouse has to have legally resided in New Mexico for at least six months prior. However, if the couple has produced children, at least one of the children must have had a residence for at least six months before the legal separation has been granted.
Another requirement is that the couple must longer cohabitate. Once one of the spouses has moved out of the marital home, the couple can petition to receive a legal separation. The family law judge presiding over the case will request that the couple come to a separation agreement that can form the basis of the court order dictating how the separation will proceed.
A legal separation agreement can contain all of the following provisions:
- Division of marital property
- Spousal support (alimony)
- Child custody, visitation/timeshare
- Child support
Request Assistance From Experienced New Mexico Family Law Attorneys
Legal separation is not something to take lightly, and there can be a significant amount of effort needed from each spouse in order to come to an amicable agreement. The court will prefer not to intervene if there is disagreement among the couple, so it can greatly benefit the couple while saving them time and money to receive legal assistance during the separation negotiations.
New Mexico Financial & Family Law has assisted hundreds of couples throughout Albuquerque and the state at large with their divorce or legal separation. Our only goal is to find an outcome that will be in the best interest of you, your children, and the family as a whole.
If you need any assistance during the legal separation process or would like a representative during agreement negotiations, do not hesitate to contact our New Mexico family law attorneys. Schedule a no-risk case review today when you call (505) 503-1637 or contact us online.