If you need to get up to speed on the divorce laws in New Mexico, you’ve come to the right place.
In a nutshell, there are four “buckets” that may need to be addressed in your divorce:
This guide covers all that and more. Let’s dive in.
New Mexico allows for either no-fault or fault-based divorce in limited circumstances. You can file based on incompatibility, cruel and inhuman treatment, adultery, or abandonment. Annulments are allowed when specific provisions are present.
One spouse or the other must have been a resident of the state for at least six months before a case can be filed with a district court where either spouse lives to petition for divorce.
Officially, divorce in New Mexico is known as a Dissolution of Marriage.
Spouses can seek alimony (officially known as spousal support). It can be paid in a single lump sum or spread out over installments. Support can be rehabilitative, transitional, or paid for an indefinite duration, depending on the circumstances of the marriage.
Regarding child custody, courts assume that joint custody is in the best interests of minors in a divorce and will seek a fair and equitable parenting arrangement. This may be impacted if either parent has a substance abuse problem, or there is evidence of domestic abuse.
New Mexico is a community property state.
That means any property acquired during the marriage is split equally. Property determined to be separate property is not subject to division.
Separate property is defined as property either spouse acquires before marriage or after legal separation or the decree if dissolution has been entered.
Property is also deemed separate if it was acquired as a gift, inheritance, bequest, or other similar means (unless the property is commingled with marital assets.
A couple can also create a prenuptial or post-nuptial agreement that identifies separate property.
Pensions and 401k plans that are earned during a marriage are considered marital property and must be divided equally. Retirement plan assets accumulated before marriage or after the date of legal separation are considered separate assets and are not subject to division.
Placing an exact value on pensions and retirement accounts can be complicated and involve large sums of money.
It’s not unusual to retain a retirement funds expert such as an accountant, pension valuator, actuary, business appraiser, or a certified divorce financial analyst to reach an accurate figure.
Once the value has been determined, and after the dissolution of marriage has been granted, an attorney or a specialized firm must create a qualified domestic relations order, often referred to as a QDRO.
The QDRO spells out in detail how the retirement account will be split. It must be submitted to the plan administrator, the court for approval. Once approved, it makes a spouse an alternate payee, and the account is divided according to the instructions in the QDRO.
While some attorneys will draft a QDRO for you, it is generally easier to go to a specialized firm. QDRO Counsel is our #1 choice for this service.
Any bank accounts with assets that were acquired during the course of the marriage are considered community property and must be divided equally. If you have a separate bank account from before the marriage, and the assets are kept separate, you may be able to make the case that the funds in the account are one spouse’s only.
You’ll need to provide sufficient documentation to prove this is the case.
Debts are treated much the same way that community property is treated in a divorce. If you incurred a debt together while married, then both parties are responsible for the debt.
However, if the debt was encumbered separately and not commingled with community property, then one spouse only may be held accountable for it.
Community debts are always divided equally in the eyes of creditors. However, you may be able to negotiate a settlement that allows one spouse to be responsible for the debt. Be careful, though, because if your name still appears on the debt, you are responsible for it, no matter what your agreement with your spouse says.
In New Mexico, all property, except for gifts and inheritances, is considered community property if that property is acquired during the marriage.
However, if you commingle your inheritance or a gift with other community property, it may then become community property as well. For example, if you inherit $100,000, but you put it into a joint bank account, then it will likely be considered community property.
As part of the final settlement, a court may rule that one spouse is entitled to a reasonable sum of money to be paid either in a lump sum or over a period of time. Officially known as spousal support, there are many reasons why it can be awarded.
The court uses several factors in New Mexico to make a spousal support determination. They include the following criteria:
The court may also order one or both parents to provide for the maintenance and education of their children. The state usually provides for child support until a child graduates from high school, but there are some exceptions.
The state uses the Income Shares Model to determine child support. Essentially, support is based on the parents’ combined gross monthly income and the number of children requiring support. Adjustments are made for health/dental insurance and work-related childcare.
Parents can appeal child support amounts in writing, explaining why a court-ordered amount is not fair or just. This can include a substantial hardship for either parent, in which case the amount could be adjusted up or down.
For more information on New Mexico state child support guidelines, go here.
Child custody is definitely one of the hot button issues in most divorces. Determining the right amount of parent time, the circumstances, and rules governing visitation can be difficult to finalize.
However, in all cases, the court will rule in the best interests of a child. This will include both physical custody and legal custody. Physical custody is where the child will live, and legal custody sets forth which parents will be in control of important decisions in a child’s life.
Joint custody is presumed to be the best option unless evidence is introduced to show otherwise (i.e., substance abuse, domestic violence)
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If the child is 14 years of age or older, the court shall consider what the child wants and who he or she wants to live with before finalizing custody. By law, the court cannot use gender as a determining factor; however, the court can use the following factors to help decide the matter:
The needs and protection of children are always placed above all else in a New Mexico divorce.
When substance abuse presents itself as a danger to children, then courts have the discretion to deny visitation and custody privileges to parents until they can prove they have resolved their substance abuse issues.
Courts may order substance abuse counseling or a rehabilitation program. They ma alsoy require drug testing to prove compliance before the parent can proceed with regularly scheduled visitation.
Also, if circumstances change after the divorce, and a parent begins to abuse drugs or alcohol, then the other parent can seek a modification of current custody and visitation orders.
If you are a victim of domestic violence in New Mexico, the first thing you must do is to get immediate help and flee to a place of safety. Once you are safe, you can begin to work out details of your divorce, perhaps starting with a Petition for an Order of Protection to keep your partner away from you.
Domestic violence definitely plays a role in child custody issues. Courts always rule in favor of what the best interests of a child are.
They will take into account both parent’s requests, the desires of the child, the mental and physical health of each parent, the parent’s willingness to provide joint custody, and geographic distances, as well.
Domestic abuse can be identified in many ways. It may consist of verbal or physical abuse, emotional or economic abuse, sexual assault, intimidation, and threats, stalking, or criminal trespassing or damage to property.
Adultery is one of the grounds that can be used in a fault-based divorce in Nebraska. To prove adultery has taken place, a petitioner must produce sufficient and relevant evidence to the court. This can include photos, witness testimony, phone and credit card records, and other similar information.
Adultery will have no impact on other aspects of the divorce. It does not affect child custody, alimony, or a division of assets.
Bifurcation means that a judge will allow a couple to split their divorce into two separate Marital Settlement Agreements. Couples sometimes reach an impasse on child custody or visitation or a division of assets, and instead of holding up the entire process, the judge will rule on everything but the one sticking-point issue.
When this happens, the couple is legally divorced, but the court retains jurisdiction over the couple to work out the remaining issues.
New Mexico judges generally don’t like to do this because it creates judicial inefficiencies and because there is less of an incentive to finalize a divorce. Once some critical decisions have been finalized, one spouse or the other may drag their feet on resolving the remaining issues.
So that an equitable division of property can take place, both spouses are required to disclose all assets. They must file forms with the court within 45 days of the filing of the initial petition.
In some cases, a spouse may try to hide assets. If they are discovered doing this, there can be severe penalties assessed by the court.
In some cases, a spouse may be required to maintain health insurance while a divorce is taking place. This is usually the case when children are involved, and one spouse has coverage through their employer.
After a divorce, group health insurers will not allow ex-spouses to remain on a policy. Children will still be covered in the vast majority of cases.
The ex-spouse who is not covered will need to find insurance through other means, perhaps through COBRA, in the insurance marketplace, or they may even negotiate the payment of coverage as part of their divorce settlement.
Civil courts in New Mexico handle military divorces. Many of the issues are the same regarding no-fault or fault-based criteria. But some things are different.
For example, child custody and visitation issues can be more complicated due to relocation or deployment orders.
A military servicemember can file where they claim their legal residence or in the state where they are stationed. The nonmilitary spouse can also file a divorce in New Mexico if that’s where he or she resides.
For example, a military spouse can request a delay in divorce proceedings so that his or her military duties are impacted. A service member can delay a legal action when he or she is on active duty plus 60 days beyond the end of his or her enlistment.
The USFSPA also governs how military pensions are disbursed and whether or not a former military spouse has full medical and commissary privileges.
For this to happen, the former spouse must have been married at least 20 years; the military spouse had at least 20 years of creditable service, and those two overlapped by at least 20 years.
If you file paperwork and have it served on your spouse, but they choose not to respond, a judge can move forward with your divorce anyway.
In a default action, the judge can grant you divorce with all the terms you are seeking, including child custody and support, alimony, a division of property, and other related issues.
Looking for more great tips about filing for divorce? Check out a few of our favorite resources:
Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
