Divorce & Family Law Summary
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in New Mexico have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
RESIDENCY REQUIREMENTS
To file for a dissolution of marriage, either party must have resided in this state for at least six months immediately preceding the filing date and have a domicile in New Mexico. The proceeding may be instituted in the county where either of the parties resides. An action for legal separation may be filed when the spouses have a permanent physical separation.
GROUNDS FOR DIVORCE
A divorce may be granted based on the following grounds:
- a) incompatibility;
- b) cruel and inhuman treatment;
- c) adultery; or
- d) abandonment.
SEPARATION
An action for legal separation may be filed when the spouses have been a permanent physical separation. If a husband and wife intend to permanently separate, either may start proceedings in the district court to determine property division, child custody, support, or alimony.
DIVORCE PROCEDURES
If child custody is contested, the court may appoint a guardian ad litem to appear for and act as a representative for the minor children. The court shall also refer the case to mediation if feasible unless a party asserts or it seems to the court that domestic violence or child abuse has occurred.
PROPERTY DIVISION
New Mexico is a community property state, meaning that property and debts acquired during the marriage shall be split equally unless the parties reach an agreement independent of a court ruling.
Property that is not subject to division is considered separate property and includes
- Property acquired before marriage or after entry of a decree of dissolution of marriage; (2) property received after entry of legal separation;
- Property that has been designated as separate property by a judgment or decree of any court having jurisdiction;
- Property acquired by either spouse by gift, bequest, devise, or descent; and
- Property is designated as separate property by a written agreement between the spouses, including a deed or other written agreement concerning property held by the spouses as joint tenants or tenants in common. The property is designated as separate property.
- Any other property shall be considered community property and subject to division.
ALIMONY-MAINTENANCE SUPPORT
REASONABLE SUM BASIS
Spousal support may be awarded on a rehabilitative, transitional, indefinite basis, or a single lump sum basis
In determining a reasonable sum, the court shall consider, but is not limited to:
- The age and health of and the means of support for the respective spouses;
- The current and future earnings and the earning capacity of the respective spouses;
- The good-faith efforts of the respective spouses to maintain employment or to become self-supporting;
- The standard of living established during the marriage, the maintenance of medical insurance for each spouse, and the availability of life insurance on the person who is to pay support;
- The duration of the marriage;
- The amount of the property awarded in the property settlement and the type and nature of the respective spouses’ assets and liabilities;
- Any agreements entered into by the spouses in contemplation of the dissolution of marriage or legal separation.
SPOUSE’S LEGAL NAME
The request for a name change may be included in the Petition for Dissolution, and the judge may order the name change by the divorce decree.
CHILD CUSTODY
When awarding custody, the gender of the parent is not to be a determining factor. The courts hold that there shall be a presumption that joint custody is in the best interests of a child, but this does not imply an equal division of the child’s time between the parents or an equal division of financial responsibility for the child.
The court determines custody per the best interests of the child, considering but not limited to:
- The wishes of the child’s parent or parents as to his custody;
- The wishes of the child as to his custodian;
- The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interest;
- The child’s adjustment to his home, school, and community; and
- The mental and physical health of all individuals involved.
CHILD SUPPORT
New Mexico uses an “Income Shares” model to determine the level of child support. This means that each parent’s income is divided by the total of both parents’ income to determine the percentage of support each parent must pay. The total income from both parents determines the level of support be paid based on the child support tables.
Child support continues until the children graduate from high school if the children are emancipated only by age, are under nineteen, and are attending high school. According to a written agreement between the parties, child support may provide maintenance and education after high school for emancipated children.
SAME-SEX DIVORCE
On June 26, 2015, the U.S. Supreme Court ruled that gay marriage is a right protected by the U.S. Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: U.S. Supreme Court Opinion: Obergefell v. Hodges. (For more information, visit ProCon.org).
