Divorce is something many of us have to deal with at some point in our lives. If you are considering filing for divorce in New Mexico, or you have recently been served divorce papers, you probably have many questions about the process, how it works, what to do, and what your rights and options are. If you have children, custody is also probably one of your biggest concerns. While filing for divorce by yourself might make sense for someone who has been married a very short period of time and who shares no assets, debts or children, in most cases it is absolutely in your best interests to consult with a New Mexico divorce lawyer. A divorce attorney can help you understand your rights, what options you have, and how to protect the interests of you and your family. Proceeding without legal consultation or signing the first agreement your spouse proposes is almost never in your best interest. That’s why the Albuquerque and Las Cruces divorce and custody attorneys at Genus Law Group have created this helpful guide to filing for divorce in New Mexico. This article will cover the divorce process and what factors you need to be aware of when facing a divorce in New Mexico. However, you should note that every case is different and there is no substitution for personalized legal advice or strategy.
How The Divorce Process Works In New Mexico
First of all, to file for divorce in New Mexico, you or your spouse must have lived here for at least the last (6) months. You do not need the other spouse’s consent to file for divorce. One spouse cannot make the other stay in the relationship. New Mexico is a “no-fault state” meaning you do not need cause to file for divorce and the court will not pass judgment on the grounds for divorce. You should consult with a divorce attorney as soon as you or the other spouse has made the decision to file. Once you or your soon-to-be-ex makes the decision to get divorced, the first step in the divorce process is drafting and filing the Petition for the Dissolution of Marriage. This document informs the court and the other party that you are seeking a divorce and officially begins the divorce proceedings. The party filing the petition is known as the “Petitioner”, while the other party is referred to as the “Respondent”. The petition states what the petitioner wants and how they would like to settle the divorce. It is almost like the petitioner’s “wish list”. There is a filing fee that must be paid in order to open the case and file any pleadings. Once the petition is filed, the respondent has (30) days to respond. An attorney can help you decide when to file and how to stay in the house or maintain bank accounts/finances during the divorce process, and even if interim support is an option. Before filing this document, however, you need to consider your situation and how you would like to proceed with the divorce.
Uncontested Vs. Contested Divorce in New Mexico
In New Mexico, there are essentially two forms of divorce- uncontested divorce and contested divorce. An uncontested divorce means you and your spouse are in FULL AGREEMENT about everything concerning ending your marriage. This means you agree on who keeps what, property and financial division, alimony, child support, and custody arrangements. As you might expect, these types of divorces are relatively rare and are usually only suitable for shorter-term marriages where there are not significant community property assets or custody issues. While coming to such a sweeping agreement without any disagreements can be challenging even for shorter marriages, there are significant advantages to going the uncontested divorce route. First of all, your divorce will be significantly less expensive. Because an uncontested divorce does not require litigation or court time, attorneys charge less than they would for a contested divorce. Furthermore, the couple can split the cost of the attorney, whose rate will be lower anyway, meaning that uncontested divorces usually cost a fraction of a contested divorce. An uncontested divorce is usually also processed faster, meaning you will get a divorce faster and for less money. If you think this might be an option for you, contact our Albuquerque divorce lawyers and set up your free consultation to discuss how we can help. Genus law offers affordable flat rates for uncontested divorces.
The most common form of divorce is known as a contested divorce. A contested divorce does not necessarily mean that the divorce will be adversarial. Rather it just means that there are issues that need to be resolved either through negotiation or litigation. This is usually the case, especially with longer marriages where significant property and/or debt has accumulated or when there are children involved. We will discuss custody and how property is divided more in another section. Usually, both sides have an attorney in contested divorces. This can make things cheaper and more efficient sometimes as it is almost always easier for the two attorneys to negotiate agreements and keep the process moving along. If one party represents themselves (meaning they are “Pro Se”) they will be at a distinct disadvantage in the case if the other party does have representation. This is because courts consider Pro Se parties to be their own attorneys, so they hold Pro Se parties to the same standards as they would a trained divorce lawyer. That means lack of knowledge will not be an excuse for botched motions, missed deadlines, or lack of preparation. Many Pro Se litigants burn their legal bridges early on in their case, leaving them with fewer options later on when they do seek legal representation.
Serving Divorce Papers in New Mexico
Once you decide what type of divorce is right for you and your family, and you have the petition drafted, you need to get the opposing party served. If you are proceeding with an uncontested divorce, or even in most contested divorces, this is usually not a problem because the other spouse is either expecting the papers or is actively participating in the divorce by hiring their own attorney. If this is the case, service is as simple as having your attorney send the papers to your spouse or their attorney via certified mail. However, if your soon-to-be-ex is uncooperative, abusive, or you don’t know where they are, other measures can be taken. The two most common forms of service in these situations are hiring a process server/sheriff to serve your spouse or serving them through publication in a newspaper. If you hire a divorce attorney to represent you, they will handle this process. After serving the petition, your attorney should file proof of service with the court, this can either be an affidavit signed by the process server or the green card that is returned through certified mail. If your represented, your attorney will handle the entire process for you.
After the respondent has been served the Petition, they have (30) days to formally respond through the court. They can either agree or contest the terms laid out in the petition. Usually, this begins a process of negotiation and disclosures. If you have an attorney, they will discuss the petition with you
Divorce Discovery Rule 1-123
Discovery is the process by which both sides disclose all financial information so that debts and assets can be fairly divided. This process can be a very important part of your case, especially if one spouse is hiding assets or both sides are not equally informed about their financial situation. Many times, spouses try to hide assets from the other spouse, or one spouse manages the finances so the other isn’t totally aware of their financial situation. That’s why a process of discovery usually takes place after the petition is filed so both sides can turn over all their relevant property/financial information. You should have a conversation with your attorney about discovery so they know what is relevant and what information you want your spouse to turn over, and what information you would not like to disclose. You can make this process easier and less expensive if you do your part to find/request all financial data like bank statements, 401 k and retirement account info, tax returns, investment statements, pay stubs, etc. Since these types of disclosures are part of nearly every divorce case, collecting and organizing this information for your lawyer from an early stage will save on the time and money it would take your lawyer to request the information and sort through it themselves. Generally, you will need to disclose all financial data from the previous 3 years or so, including paystubs and tax returns. Once rule 1-123 disclosures are made, things like property division and alimony will be decided.
Property Division in New Mexico
New Mexico is a community property state, meaning that all debts and assets acquired during the marriage must be divided evenly. That means the values of all assets and debts must be calculated and then divided. This includes things like bank accounts, savings, retirement accounts, 401ks, investments, real estate, cars, and of course the marital home. Some couples have a significant separate property to account for, while others have very little property to divide in general. One of the biggest assets that needs to be addressed is usually the marital home. In most cases, the marital home is the most valuable asset to be divided and both parties have a community interest in it. If one spouse wants to keep the home, they must either buy the other party out and refinance by themselves or give the other party enough assets to balance out the value of and debt of the home. Usually, neither party can afford to maintain the home by themselves, so it is usually sold and the profits divided after the reaming debt has been paid. Occasionally, one party may have a separate property interest in the home, and in these cases, the value of the separate property will need to be calculated. Along with custody, and alimony, property division is usually one of the most contentious parts of a divorce, so it is often addressed in settlement facilitation. If no agreement can be reached, the court maintains full jurisdiction and can make a decision.
Alimony in New Mexico
Spousal support, known as alimony here in New Mexico, is a common feature of many contested divorces. While the length of the marriage is a big determining factor, the decision to award alimony to one spouse ultimately comes down to need and ability to pay. Unlike child support, alimony is not automatically calculated by the courts during a divorce case, so it is up to the spouse who wants alimony to pursue it. Similarly, alimony is not calculated using strict mathematical equations like child support is, instead, it is determined by one spouse’s need and the other’s ability to pay, along with other factors. Generally speaking, the court will consider:
the spouses’ ages, health and means of support
each spouse’s current income, future earnings, and "earning capacity" (potential income based on education, job history, skills and employment opportunities)
both spouses’ good faith efforts to maintain employment or become self-supporting
the length of the marriage
the amount of property awarded to each spouse
each spouse’s assets and debts
-Income produced by either spouse’s property (for example, income from rental properties or interest income from a trust or investment account)
-Any agreements made in contemplation of a divorce or legal separation, and
-The spouses' reasonable financial needs (taking into account the marital standard of living, medical insurance needs, and life insurance to secure support payments).
Payments of spousal support may be required for regular intervals or in a lump sum payment, dependent on the decision of the court. If the dependent spouse is unable to support themselves independently, whether it be due to a lack of funds or a disability, they may qualify to receive maintenance payments. Continuing the standard of living established during the marriage is one of the main goals of New Mexico spousal support, so whether either or both spouses can maintain that standard of living is a main consideration during the case.
Child Custody in New Mexico
As you might expect, child custody can be one of the most contentious issues in divorces with children. Usually, both parents want as much time with their children as possible. While some families are able to agree on a split custody agreement that works for them, many others may have issues when it comes to sole custody and split custody arrangements. If you have children, coming up with a parenting plan and custody agreement is one of the most important parts of your divorce. It will govern things like school, timesharing, holiday schedules, and child support. New Mexico family law courts use the standard of “best interest of the child” when making custody determinations. This standard aims to promote a child‘s emotional, mental, and physical wellbeing and development. The courts typically feel that it is in the child’s best interest for both parents to be involved in their child’s life. That means they are generally hesitant to award sole custody to one parent unless there are strong reasons for doing so. When determining who will get primary custody, New Mexico family courts look at a variety of factors, including who is the primary caregiver for the child. The parent who feeds the children takes them to school, and doctor’s appointments, helps them with homework, and takes care of their other daily needs will likely be in a better position for primary custody.
In some cases, if one parent is completely unwilling or unable to communicate and cooperate on parenting issues, the court may award sole legal custody to the other parent. However, even in those types of cases, the court usually awards sole legal custody to one parent while awarding joint physical custody, or timesharing, to both parents by granting the non-custodial parent visitation or timesharing with the child. Today, New Mexico family law judges are usually very reluctant to completely sever a parent-child relationship, which is often the result when one parent is awarded sole legal and physical custody that prevents the non-custodial parent from any meaningful involvement in their child‘s life. If a joint custody order is already in place, a court will only replace it with a sole custody order if there has been a material and substantial change to conditions affecting the child‘s welfare that makes joint custody no longer in the best interests of the child.
Child Support In New Mexico
An agreement must also be reached about how the children will be financially supported. This almost always comes down to one parent paying money to the other. Child support is actually pretty straightforward and determined by taking into account the needs of the child, and each parent’s relative ability to meet those needs. This is determined by reference to the New Mexico child support guidelines. These guidelines provide two child support worksheets, worksheet A and worksheet B. The courts basically enter your information into these worksheets and the amount due is calculated. While you and your spouse can stipulate to an amount outside of what the worksheet calculates, the court will use the child support calculation if there is no outside agreement.
The Marital Settlement Agreement (MSA)
Once discovery is completed, the parties will try to agree on a Marital Settlement Agreement (MSA). This document is the heart and soul of the divorce process and defines how assets and debts are divided, who gets the house, parenting plans, custody, child support, spousal support, retirement accounts, and any other outstanding issues. Basically, it's the document that contains and officially adopts all of the agreements between the two parties. It’s at this stage that the parties either agree to a settlement or the court orders mediation. In New Mexico, this is called Settlement facilitation. Settlement facilitation is the process in which a neutral third party, usually another family law attorney, tries to mediate an agreement between the two sides and their attorneys. Normally, both parties meet in separate rooms of the settlement facilitator’s office while the facilitator goes between rooms carrying proposals and counter-proposals back and forth. The process typically lasts between 4 and 8 hours, but it is usually successful in creating an agreement. Once an MSA is signed by both parties and filed with the court, the Final Decree can be filed. This document finalizes your divorce and MSA, and officially ends your marriage. If the parties cannot come to an agreement during settlement facilitation, they will have to go to court and the judge will weigh in on any outstanding issues and make a ruling.
How to Start the Divorce Process
Your first step should be contacting a local family law attorney. While you may be able to get divorced on your own if you don’t have children, assets, and you have great communication with your soon-to-be-ex and you guys are in full agreement about how to divide everything, this is usually not the case. It’s important for you to have an expert in your corner who is looking out for your best interests and who understands the ins and outs of NM family law court. The Albuquerque divorce and custody lawyers at Genus Law Group offer one on one, personalized consultations where we go over your situation, what your rights and options are, and how we can help. Unlike the other large family law firms in New Mexico, Genus Law only practices Family law. That means all of our time, energy, skill and training is focuses on the newest developments in New Mexico family law. We know the ins and outs of family law courts and how to get the best outcome in your case.
If you need help, call 505-317-4455, contact us, or chat with an online representative now and book your consultation with Albuquerque's best divorce lawyers.
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