By Christie Nicholson, J.D. | Legally reviewed by FindLaw Staff | Last reviewed August 30, 2024
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If you are considering divorce, you should learn New Mexico's divorce laws. Every state has specific legal requirements you must meet before filing for divorce. New Mexico refers to divorce as "dissolution of marriage."
The divorce process in New Mexico is like that of other states. Here, we'll describe the divorce laws in your state and explain how these laws may affect alimony, child custody, and property division.
Below, you will find a chart summarizing the critical divorce laws in New Mexico. If you still have questions about your divorce case, consult a skilled New Mexico family law attorney.
New Mexico is a community property state. This significantly impacts how you divide your marital assets and debts. The chart below highlights the other rules and laws that govern New Mexico divorce cases.
| Code sections | §40 of the New Mexico Statutes |
|---|---|
| Residency requirements | New Mexico law requires that either party has lived in the state for at least six months and has a "domicile" there. One spouse must be physically present in the state and intend to live there permanently or indefinitely. |
| Waiting period | There's a 30-day waiting period between serving the divorce papers on your spouse and the judge finalizing your divorce. |
| No-fault grounds for divorce | Incompatibility. This means the spouses no longer get along, and the marriage isn't salvageable. |
| Other grounds for divorce | New Mexico has three fault-based grounds for divorce:
|
Note: State laws are subject to change due to new legislation, higher court rulings, ballot initiatives, and other means. While we strive to provide the most current information, consult a local divorce attorney or research to verify your state's laws.
Every state uses different terminology in divorce. In New Mexico, the person filing for divorce is the petitioner. Their spouse is the respondent. When the filing party submits their divorce papers to the court, they must also serve a copy to the respondent.
New Mexico law refers to divorce as a dissolution of marriage. So, the form you must submit is a petition for dissolution of marriage. The respondent then has a chance to file their answer.
Many people assume that they will get alimony when they get divorced. The New Mexico courts refer to alimony as spousal support. Nobody is ever guaranteed spousal support. It depends on a host of factors. If the parties can't agree to spousal support, the district court judge will determine whether it's warranted. The judge will also decide how much support the lower-earning spouse deserves.
Legal separation is different from divorce. New Mexico law recognizes legal separation. You must file a petition for legal separation like you would for divorce. You can file for separation through a divorce action or an annulment.
You must meet the state's residency requirement to file for divorce in New Mexico. According to New Mexico Statute § 40-4-5, one or both parties must live in the state for at least six months before filing for divorce.
There is also a mandatory waiting period in New Mexico. This is the period of time between filing your petition and the judge issuing your final divorce decree. In New Mexico, the waiting period is 30 days. This "cooling off" period gives the parties a final chance to change their minds or modify the terms of their divorce.
Every state recognizes no-fault divorce. In a no-fault divorce, you don't have to blame your spouse for the demise of your marriage. You must only certify to the court that you and your spouse are experiencing incompatibility. In other words, you don't get along as a married couple. You must also certify that your marriage is not salvageable.
You have the right to file a fault-based divorce. New Mexico Statute § 40-4-1 offers three grounds for divorce, including:
If you file a fault-based divorce, you must submit proof to the court that your spouse engaged in the behavior alleged in the divorce petition.
After deciding which type of divorce you wish to file, you must determine whether your divorce will be uncontested. In an uncontested divorce, the parties agree to the divorce terms. They submit a copy of their marital settlement agreement to the court for approval. Once the judge approves the deal, they will schedule the final divorce for 30 days later.
In a contested divorce, the spouses disagree on the material divorce terms. Some of the legal issues on which they disagree include:
Your divorce attorney will ideally negotiate a settlement with your spouse's lawyer. If not, the judge will schedule a trial. Both sides get to argue their case to the judge during the trial. The judge will make the final decisions on the outstanding issues.
Under New Mexico Statute § 40-4-7, the court may award spousal support to the lower-earning spouse. The court will consider various factors when deciding if either party deserves spousal support.
Some of the factors the judge will take into account include:
Once the judge determines you deserve alimony, they must decide which type to award. New Mexico courts recognize the following three types of spousal support:
Remember, there's no guarantee the judge will award you spousal support. It depends on your case's facts and the circumstances' totality.
Child custody is one of the most complex issues to negotiate during a divorce. In most divorce cases, one spouse stands out as the primary caretaker of the minor children. In other cases, the parents equally care for the children.
If you can't negotiate a fair custody arrangement, the court will do it for you. The only concern of the courts is the best interests of the children.
As for child support, the State of New Mexico has child support guidelines in place. The judge will defer to these guidelines when determining how much the non-custodial parent will pay.
Since New Mexico is a community property state, the courts will split your marital property in half during the divorce proceedings. In states that don't follow community property law, the courts use equitable distribution to divide marital assets and debts.
The following is subject to division in a community property state like New Mexico:
You and your spouse will have a chance to divide property as you see fit before trial. But, if you can't agree, the court will make these decisions for you.
Even in an amicable divorce, things can get messy. Things go smoothly until you and your spouse fight over the family pet. The best way to protect your legal rights is to talk to an experienced New Mexico divorce attorney.
Your divorce lawyer knows New Mexico divorce laws. They also know how to navigate the family law courts. They're familiar with how specific judges handle divorce cases. New Mexico divorce lawyers also have years' worth of experience with such things as mediation, child custody, and divorce trials.
Contact a qualified attorney.
Get tailored divorce advice and ask a lawyer questions. Many attorneys offer free consultations.
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