What is a Contested Divorce?
A Contested Divorce is actually the most common type of divorce in New Mexico and is what most people think about when they think about divorce. Getting a contested divorce usually involves dividing property, debts, and assets, determining spousal support, and possibly crafting a detailed child custody agreement and child support. In most cases, couples who have been married for more than five years are in circumstances that prove contested divorce is the most realistic option. For example, couples married for five years or more often have more marital assets, community property, debt, and children than a married couple of fewer than five years. These assets can also include retirement accounts and benefits, deposition of the marital residence, and relocation.
If you and your soon-to-be-ex are in agreement about everything, or you don't have a lot of joint property or children, an uncontested divorce could be an option.
NM Contested Divorce Doesn't Always Have Lots of Litigation
Despite what the name might imply, a contested divorce doesn't always have to be adversarial or very contentious. It just means there are issues relating to the divorce that need to be resolved. More often than not, couples planning on getting a divorce don't see eye to eye on every issue in their relationship and impending separation. Not being on the exact same page as the other party during a divorce is very common. If you're in a situation where communication is lacking, or you have been married a few years and have property that needs to be divided, community property, or children, then a contested divorce is likely your best option.
A contested divorce is what most people think about when people are undergoing legal separation. This involves court activity, negotiations, mediation, community property negotiation with lawyers, and possibly custody disputes. Even if you and your spouse can agree on the reallocation of assets, property, and child support, one factor you and your spouse can't agree on could be the deciding factor that makes a potential uncontested divorce a contested divorce. However, just because there are differences when it comes to property division or child custody doesn't mean you have to have a long, drawn-out, and expensive divorce case. I’ve handled many contested divorces where both parties were able to come to satisfactory agreements very quickly, with rational and efficient negotiating on both sides. I’ve also been involved with many highly contested cases where there is a lot of conflict and emotion that make the case more difficult and usually more costly. You can check out our Guide on Reducing Divorce Costs in New Mexico here.
If you want to start the divorce process, you'll need to file a petition with the relevant family court. This document contains the grounds for the divorce and what you want from the separation. Once approved, you'll need to set up a copy of the partition and give it to the other party, as well as a summons. There is a 30-day responding period for confirmation; the party will default in some cases.
Contested Divorce and Divorce Discovery
After creating a petition and letting the other party know you want to divorce, you'll need to hire a lawyer to assist you in gathering information on all your assets, community property, debts, and anything else relevant to your case. If you start a divorce without a second pair of eyes to help you on your journey, you might become overwhelmed with all the legal details and documentation. Divorce discovery is usually the longest part of the divorce process due to the time it takes to find accurate information. Sometimes the opposing party requests non-relevant details to slow down a divorce; this can be costly because of the time needed to find the info.
You can find out more about the divorce process here.
Property Division in New Mexico
New Mexico is a community property state. While this fact has many implications for your divorce, it essentially means all assets and debts acquired during the marriage must be divided equally between the couple. That means you are entitled to 50% of everything you and your spouse made during your marriage, and you're responsible for 50% of the debt. This does not include things that are considered separate property. One of the main reasons longer-term marriages usually require a contested divorce is simply because the longer you have been married the more property and debt you have acquired. Property division is also usually one of the most contentious aspects of divorces. Sometimes one or both spouses want to keep the marital home or their entire retirement account. In that case, negotiations need to balance these desires out with an agreement or other assets.
Alimony in New Mexico
Alimony sometimes referred to as spousal support, can be a factor in your divorce. Typically, New Mexico Family Law Courts consider things like the length of the marriage, the income disparity between each spouse and their likely earning potential. Generally, courts are more likely to grant alimony the longer the couple has been married and the bigger the income gap. Check out our Alimony section to learn more.
Remember, spousal support can have a long-term financial impact on you, that is why you should always work with a divorce attorney who can make sure your interests are pursued.
What is a Marital Settlement Agreement (MSA)?
The Marital Settlement Agreement (MSA) for your contested divorce contains the terms of the divorce and how the property, assets, and debts within your divorce will be relocated. Parenting plans will also be made if relevant to the case, outlining the custody agreement, timesharing, spousal support, and child support. New Mexico laws aim to divide all assets, debts, and community property as equally as possible. During this stage of the marital settlement, everything that both parties own will be assessed and valued. Settlement facilitation is effective at forming most agreements; failure is relatively rare. If it does occur, the court will pass judgment and make the final decisions after a hearing. Once you and your spouse agree to the terms of your divorce, you’ll be able to draft your Final Decree, which finalizes the dissolution of the marriage.
How an Albuquerque Famly Law Attorney Can Help
If you're considering divorce or have been served divorce papers, it is always in your best interest to consult with a qualified family law attorney. While things like property division or child custody may seem straightforward in concept, in reality, the law is nuanced and contact and a good attorney can ultimately make a huge difference in your case. You can schedule a consultation with the divorce and custody experts at Genus Law through our online chat or call us at (505)-317-4455 to set up your consultation. One of our experienced Albuquerque Divorce Attorneys is waiting to discuss your case, concerns, and options with you to ensure you get the best possible outcome.
