Can I Get Spousal Support in NM? Can My Spouse?
The financial cost of a divorce is oftentimes one of the most prominent factors in deciding if divorce is right for you and your spouse. Aside from the divorce cost itself, you may be concerned about how much you will have to pay your spouse or how much your spouse will have to pay you after you separate. If you live in New Mexico and are considering divorce or going through a divorce, you should be aware of what your financial prospects post-divorce will be and what expenses or support you will have when it’s over. While the answer depends on many variables and the facts of your specific situation, there are certain circumstances in which you or your spouse might be able to receive spousal support in New Mexico.
New Mexico Alimony Basics
In New Mexico, spousal support is usually referred to as alimony. 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.
When Do I Have to Pay Spousal Support in New Mexico?
Generally speaking, if you make significantly more money than your spouse, and you have been married for more than 5 years, you may have to pay alimony if your soon-to-be-ex requests it. For example, if you make $100,000 a year and your wife makes $35,000.00 and you have been married 10 years, she may be entitled to spousal support. You may also have to pay spousal support if your spouse has a disability that prevents them from working. Standard of living is also considered when calculating alimony payments in the state of New Mexico. This means that a judge will consider the lifestyle enjoyed by the alimony-receiving spouse during the duration of the marriage when determining an appropriate alimony payment amount. Child support and child custody are not considered when determining alimony. That means you could still be ordered to pay spousal support to your ex even if you already pay them child support or even if you have primary custody of the children. However, if your ex has a college degree and chooses to be a stay at home parent, their ability to earn is significantly more than their present income so you may be able to avoid alimony.
How long do I have to Pay Alimony in New Mexico?
Again, the answer largely depends on the facts of your marriage. In New Mexico, there are three types of spousal support that can be awarded to you or your spouse. Long Term Alimony is the type most people think of when they hear the word “alimony.” Long-term support has an indefinite duration, which means it’s paid until the supported spouse dies or remarries.
Long-term alimony is fairly difficult to obtain in Albuquerque as it’s generally reserved for long marriages (that last 20 years or longer). Long-term alimony is usually awarded under the following (or similar) circumstances:
- when the couple has been married for a long-time
- when one spouse was mostly a stay at home parent or did not work
- where one spouse has very limited education or employment skills, and/or
- in other situations where there will always be a significant disparity in income between the spouses.
While these factors are considered, the duration of payments is ultimately determined by the judge your seeing in New Mexico family court. While alimony length is usually based on length of marriage - one commonly used standard for alimony duration is that 1 year of alimony is paid every three years of marriage (however, this is not always the case in every state or with every judge). Alimony may also be discontinued upon the remarriage or cohabitation of the receiving spouse. In some cases, judges may even award permanent alimony. The two remaining types of alimony are known as Transitional alimony and Rehabilitative alimony. Transitional alimony is support paid to supplement the receiving spouse’s income for a limited period of time to help the receiving spouse get established. This usually lasts a year or less. Rehabilitative alimony is financial support that allows a supported spouse to pursue education, training, or a degree so he or she can earn enough income to become self-sufficient. Its goal is to make the receiving spouse financial independent.
How is New Mexico alimony paid?
Usually, the paying spouse sends the supported spouse a check every month. However, in some cases, spouses can agree to a lump-sum buyout of support, which is a one-time payment of a fixed amount. So, for example, if the spouses agree (or a court decides) that the supported spouse should receive $1000 a month in rehabilitative alimony for 24 months, the paying spouse owes $24,000; this can be paid monthly, or in a single lump-sum (paid all at once or in one or more installments).
Divorcing couples can also agree to a lump-sum buyout of long-term alimony, but this calculation is more complicated; the first step requires a calculation of long-term support (both the amount and duration). Then, in cases where alimony is going to be paid in the future, the couple will need to “present value” the amount (determine the current value of a future lump-sum payment). So if the court orders $1000 of support for 3 years, you could pay a lump sum of $36,000.
If you have questions about offering or accepting a lump-sum alimony payment, you should speak with an experienced family law attorney in your area.
Finally, a lump-sum alimony payment will need to be managed very carefully, especially if it’s meant to cover life-time support. If you are the receiving spouse and are considering this as an option, you should meet with a financial planner who can give you sound investment advice and help you determine whether the amount offered is enough to cover your current and future expenses.
How Can I Avoid Paying Alimony in New Mexico?
Even if many of the factors that are described above are in play, you might still be able to avoid paying spousal support. First of all, you can always address income disparities through other means. For example, I have had many clients give the other party the marital home in order to avoid having to make monthly payments to their ex for years on end. You may be able to offer various other concessions, like a portion of retirement or social security benefits in the Marital Settlement Agreement to avoid long term payments. Every case is different so to identify what options are available to you, you should contact an Albuquerque attorney who can help you identify and pursue those options. While lawyers aren’t cheap, their fees will likely be a lot less than years of monthly alimony payments. Genus Law’s Albuquerque divorce and child custody lawyers have the resource and experience to deal with any New Mexico alimony or spousal support case.
How Can I Get Spousal Support?
If you make significantly less than your spouse, you probably have a good chance of collecting some spousal support. Generally, it is best to address alimony in your petition for divorce or in your MSA. It is much more difficult to address spousal support after the MSA has been agreed too and your divorce has been finalized. It’s usually best to have your desired spousal support be a part of the settlement negotiations from the very beginning. You may have to make some concessions in terms of property division, but depending on your situation it is likely worth it. Again, spousal support has no bearing on child support, so even if you are receiving child support you may still be able to receive spousal support. The court will factor in your earning potential and the length of the marriage. If you have a college degree but are not employed in your field or are underemployed, the court could lower or refuse your alimony payments. However, if you were not employed for the length of the marriage because you were raising your children, the court with factor in your lost earning potential and the fact that your ex was able to work because you were raising the kids. As you can see, there are many factors that go into determining alimony so to know what your options are you should contact an attorney as early in the process as possible so you can get the best outcome. Genus Law’s Albuquerque divorce and child custody lawyers have the resource and experience to deal with any New Mexico alimony or spousal support case.
Can Alimony be Changed?
Unless the order for spousal support or the marital settlement agreement is “non-modifiable”, your spousal support payments can be changed. You will, however, have to prove a substantial change in circumstances to justify the modification. That means that your income or your expenses need to have significantly changed since the spousal support was calculated before you can either receive more or pay less.
Spousal support is often one of the biggest factors in divorce and it can significantly impact your life after the divorce. That’s why it’s important to understand alimony in New Mexico and how it is calculated so that you can address the issue early on in the divorce process. If you have any questions about spousal support or alimony in New Mexico, contact Genus Law’s dedicated Albuquerque divorce lawyers by either chatting with us here or by calling us at (505)-317-4455.