NEW MEXICO DIVORCE LAW
Divorce and separation laws and procedures vary around the country. As such, the laws governing divorce and legal separation in New Mexico make the process different from the rest of the country. However, no matter what state you are considering filing for divorce or separation, the same issues must be addressed—legal separation, grounds for divorce, residency requirements, simplified or special divorce procedures, annulment, and division of marital property. It is important to learn of all your rights and responsibilities when filing for divorce or legal separation by consulting a New Mexico divorce attorney.
Legal separation differs from divorce because the parties continue to be officially married after the court resolves their issues. It is used as an alternative to divorce for tax benefits or religious purposes. When both parties have agreed to separate and at least one party is a resident of New Mexico, a court will allow the parties to legally separate. During the legal separation process, a court may handle the division of property. If children are involved, a court will make orders regarding issues of care and custody. Courts reserve the right to revise any orders at their own discretion (e.g., a child custody order may change if the parent with custody later becomes incapable of taking care of the child).
Grounds for Divorce
Fault and no-fault grounds for divorce are both allowed in New Mexico. Specific reasons are needed to obtain a fault-based divorce. Such grounds include abandonment, adultery, and cruel and inhumane treatment. Merely showing incompatibility between the parties is enough to obtain a divorced based of no-fault grounds. There is incompatibility between the parties when the marriage relationship is destroyed and the parties do not expect to reconcile. This is a very broad standard and must only be asserted by one of the parties. It is important to discuss your divorce options with a New Mexico divorce attorney.
Divorce Residency Requirements/Where to File for Divorce
The party filing for divorce must have been a resident of New Mexico for at least six months prior to filing. The petition for divorce must be filed in the court with jurisdiction over the county where either party lives. When a particular court has jurisdiction over a divorce, it will have power over all property owned by the parties, regardless of where in the state the property is located.
Availability of Simplified or Special Divorce Procedures
While New Mexico does not offer any significant special divorce procedures, the option for parties to agree to a binding arbitration should be noted. Parties may agree to have judgments made by binding arbitration on a number of issues, including the following (issues listed are not exhaustive):
Another notable simplified divorce procedure pertains to no-fault divorce. No fault-based divorces, that meet three requirements, expedites the divorce process and leads to a swift resolution: 1) both parties sign the divorce petition; 2) the parties have a marital settlement agreement or a notarized separation agreement; and 3) the parties' affidavit swears that the marriage is irretrievably broken. No summons is required during these types of divorce cases. It should be noted that the completion of the required documents are often done with the help of attorney representation outside of court. You should consider consulting a New Mexico divorce attorney when completing these documents.
An annulment is often used as an alternative to a divorce and essentially is a court declaration that your marriage was never legally valid to begin with. Courts in New Mexico grant annulments for reasons including the following: 1) consanguinity; 2) a party who is under the age of majority at the time of marriage and did not have parental consent to marry; and 3) fraud or duress. Annulments are not filed as frequently as divorces and courts usually grant them in rare circumstances. You should consult a New Mexico divorce attorney if you have questions or concerns about seeking an annulment rather than a divorce.
Division of Marital Property
Since New Mexico is a “community property” state, all property acquired during the course of the marriage will divided equally, unless the parties made a specific agreement stating otherwise. Factors that are taken into account by the court during the property division process include: 1) the length of marriage; 2) separate property of each spouse; 3) nature of the community property; and 4) the economic circumstances of each spouse. The process of dividing marital property can be confusing and you should consult a New Mexico Divorce attorney if you have any questions or concerns.
Links to Divorce Statutes Find the following New Mexico Statutes here.