Divorce vs Legal Separation in New Mexico                                              

When deciding to end or take a break from your marriage, it's important to understand all your options so that you can make the best decision for you and your family. While many people assume divorce is the only way to end your marriage, Legal separation is also recognized and available in the state of New Mexico. Thus, an action for legal separation may be filed whenever both spouses have permanently and physically separated from each other.

It is not uncommon for people to prefer a legal separation rather than a divorce. The thought of the permanency of a divorce is often difficult and people prefer to ease into it or to use a trial separation to decide whether or not to move toward divorce. Keep in mind that there are a few good reasons for wanting a legal separation rather than a divorce. Wanting to ease into the divorce is not typically one of them.

Hands on opposite sides of a negotiation table, divorce settlement in the middle.

Advantages of Legal Separation

People get legally separated rather than divorced for many reasons, including for religious reasons or the need to maintain marriage benefits that would be lost in the event of a divorce. There are also situations where one or both parties wish to separate their assets and liabilities. The emphasis is on liabilities and debt. This is not too uncommon and can arise in many situations where one party is running up significant debt to the detriment of the other. Keep in mind that the division of debt is prospective, and not retroactive. This means that the parties are equally responsible under the community property laws of New Mexico for debt incurred prior to the legal separation.

Disadvantages of Legal Separation

There are several drawbacks to a legal separation. First, most important perhaps, you should be mindful that a legal separation does not free you or your spouse such that you will be able to marry another person. Second, the legal separation process can take the same amount of time, involve the same amount of stress, require a comparable number of court hearings and most importantly entail the same level of attorney fees and costs as a divorce. So it is important to have reasonable expectations regarding the processes of legal separation as well as the outcomes and benefit.

Related to the last point, all of the issues that are determined in a divorce are determined in a legal separation, and either spouse may start proceedings in the district court for the determination of those various issues, such as custody, child and spousal support, and division of property and debt. Like a divorce, a legal separation can also be reached by settlement. A legal separation agreement is a written agreement that describes your rights and settles the above-mentioned issues along with any other issues deemed important to the parties.

On the whole, legal separations are the same in almost all aspect to a divorce, with a few exceptions. For instance, the marriage is not terminated. There are different names for the documents that will be used in this situation: for example, there is the petition that is filed with the court, which is called a “verified petition for legal separation,” and the final decree that is issued by the court is called a “final decree of legal separation.”


Know and Understand Your Options!

These are valid reasons for a legal separation. Easing in to the divorce or using the legal separation to decide whether to seek a divorce is not. If you are considering a divorce or legal separation, it is important to discuss your situation with an attorney experienced in New Mexico family law. Knowing and understanding your options can save a lot of time, stress and legal expense associated with making an uninformed decision.
Anthony Spratley
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Experienced Divorce, Child Custody, and Guardianship Lawyer Serving Albuquerque and Beyond