New Mexico Family Law And Divorce Resource
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in New Mexico have the authority to manage the divorce proceedings, including, spousal and child support payments, custodial rights of parents and the division of community property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making any important decisions about your marriage. You can also visit the GotTrouble Divorce Resource for a more in-depth understanding of related divorce and family law topics.
As of 2016, all states allow for “no fault” divorce. Yet many courts still factor in the respective parties past behavior when determining the division of community property, debts, custody, support and related issues.
SAME-SEX DIVORCE –UPDATE:
On June 26, 2015, the US Supreme Court ruled that gay marriage is a right protected by the US Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: US Supreme Court Opinion: Obergefell v. Hodges. (For more information visit ProCon.org).
To file for a dissolution of marriage, either party must have resided in this state for at least six months immediately preceding the date of the filing and have a domicile in New Mexico. Proceeding may be instituted in the county where either of the parties resides. An action for legal separation may be filed when there has been a permanent physical separation of the spouses.
GROUNDS FOR DIVORCE: NO FAULT
A divorce may be granted based on the following grounds:
- a) incompatibility;
- b) cruel and inhuman treatment;
- c) adultery; or
- d) abandonment.
An action for legal separation may be filed when there has been a permanent physical separation of the spouses. If a husband and wife intend to permanently separate, either may start proceedings in the district court for the determination of property division, child custody and support, or alimony.
If child custody is contested, the court may appoint a guardian ad litem to appear for and act as a representative for the minor children. The court shall also refer the case to mediation if feasible unless a party asserts or it appears to the court that domestic violence or child abuse has occurred.
New Mexico is a community property state, meaning that property and debts acquired during the marriage shall be split equally, unless the parties reach an agreement independent of a court ruling.
Property which is not subject to division is considered separate property, and includes
- Property acquired by before marriage or after entry of a decree of dissolution of marriage; (2) property acquired after entry of a legal separation;
- Property which has been designated as separate property by a judgment or decree of any court having jurisdiction;
- Property acquired by either spouse by gift, bequest, devise or descent; and
- Property designated as separate property by a written agreement between the spouses, including a deed or other written agreement concerning property held by the spouses as joint tenants or tenants in common in which the property is designated as separate property.
- Any other property shall be considered community property and subject to division.
ALIMONY/MAINTENANCE/SPOUSAL SUPPORT – REASONABLE SUM BASIS
Spousal support may be awarded on rehabilitative, transitional, indefinite basis, or on a single lump sum basis
In determining a reasonable sum the court shall consider, but is not limited to:
- The age and health of and the means of support for the respective spouses;
- The current and future earnings and the earning capacity of the respective spouses;
- The good-faith efforts of the respective spouses to maintain employment or to become self-supporting;
- The standard of living established during the marriage, the maintenance of medical insurance for each spouse, and the availability of life insurance on the person who is to pay support;
- The duration of the marriage;
- The amount of the property awarded in the property settlement and the type and nature of the respective spouses’ assets and liabilities;
- Any agreements entered into by the spouses in contemplation of the dissolution of marriage or legal separation.
SPOUSE’S LEGAL NAME:
The request for name change may be included in the Petition for Dissolution and the judge may so order the name change by divorce decree.
CHILD CUSTODY – BEST INTERESTS OF THE CHILD
When awarding custody, gender of the parent is not to be a determining factor. The courts hold that there shall be a presumption that joint custody is in the best interests of a child, but this does not imply an equal division of the child’s time between the parents or an equal division of financial responsibility for the child.
The court determines custody in accordance with the best interests of the child, considering but not limited to:
- The wishes of the child’s parent or parents as to his custody;
- The wishes of the child as to his custodian;
- The interaction and interrelationship of the child with his parents, his siblings and any other person who may significantly affect the child’s best interest;
- The child’s adjustment to his home, school and community; and
- The mental and physical health of all individuals involved.
New Mexico uses an “Income Shares” model to determine the level of child support. This means that each parent’s income is divided by the total of both parents income to determine the percentage of support that each parent is responsible for. The total income from both parents determines the level of support to be paid, based on the child support tables.
Child support continues until the children’s graduation from high school if the children are emancipated only by age, are under nineteen and are attending high school. Child support may provide for maintenance and education after high school of emancipated children pursuant to a written agreement between the parties.
ENFORCING CHILD SUPPORT ORDERS – FEDERAL OPTION:
FIND LOCAL FEDERAL ENFORCEMENT AGENCY NEAR YOU