Child Support
Residency Requirements and Grounds for Divorce
Either you or your spouse must be a New Mexico resident for at least six months before filing for divorce, and either you or your spouse must have a home in New Mexico. A divorce case begins when one spouse files a petition for dissolution of marriage in the district court of any county where either spouse resides.
Grounds for divorce are:
- Incompatibility
- Cruel and inhuman treatment
- Adultery
- Abandonment
Incompatibly exists when, because of discord and conflicts of personalities, the purpose for your marriage no longer exists. It's not reasonable to expect reconciliation.
Dividing the Property
New Mexico is a "community property" state. Community property is property owned by you and your spouse, and acquired during your marriage. It doesn't include gifts or inheritance received by one of you. Community property is divided equally between the two of you. Marital fault is not considered in the property division.
You and your spouse keep your separate property acquired prior to the marriage and any gifts or inheritances. You and your spouse may also have a written agreement setting certain assets aside as separate property.
Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with a New Mexico divorce lawyer and it can save you a lot of time and money.
Alimony
The court can order alimony, which is also called spousal support, to either party in New Mexico. Spousal support can be property or money. If money, payment may be in either a single sum or installments. There are different support types:
- Rehabilitative spousal support provides the recipient with education or training to enable him or her to increase earning capacity or get a job to be self-supporting
- Transitional spousal support provides supplemental income for a limited time
- Spousal support for an indefinite time
- A single sum to be paid in one or more installments in set amounts
The first three types can be modified based on a change of circumstances. However, changes can't be made if the support order specifies it's non-modifiable.
Factors in deciding spousal support issues include:
- Age and health of the spouses
- Means of support for the spouses
- Current and future earnings and the earning capacity of the spouses
- Good-faith efforts of the spouses to keep their jobs or become self-supporting
- Reasonable needs of the spouses
- Marriage length
- Property division
- Type and nature of assets of each spouse
- Type and nature of liabilities of each spouse
- Income produced by property owned by each spouse
- Agreements by the spouses regarding support in case of divorce
Child Custody and Visitation
In New Mexico, the court may order joint or sole child custody based upon the best interests of the child. Joint custody is presumed to be in the best interests of the child. Gender isn't a factor in custody decisions.
To determine what is in the best interests of a child under the age of 14, the court will consider several factors:
- Parents' wishes
- Child's wishes
- Interaction and interrelationship of the child with parents, siblings and significant others
- Child's adjustment to home, school and community
- Mental and physical health of all individuals involved
- Other relevant factors
If a child is 14 years old or order, the court gives greater weight to the child's preferences in making a custody decision.
There are added factors a court considers when deciding on joint custody issues:
- Whether the child has established a close relationship with each parent
- Whether each parent is capable of providing adequate care for the child when the child is with him or her
- Whether each parent accepts all parenting duties
- Whether a joint custody arrangement will help the child have the best relationship possible with each parent
- Whether the parenting plan is adequate
- Geographic distance between the parents' homes
- Whether the parents can and will cooperate and agree on child-rearing matters
- Whether there's been any legal judgments on domestic violence involving the parents and child
If one parent is awarded sole custody, the other parent is usually awarded visitation rights by the court. A visitation schedule may be agreed upon by the parents or set by the court.
If the parents have an agreement as to a form of custody, the court should award custody consistent with that agreement unless it finds the agreement is not in the best interests of the child.
A significant change in circumstances may be sufficient to justify a change in child custody orders if a change would be in the best interests of the child.
Child Support
The New Mexico child support guidelines are applied to determine the child support due from each parent. The guidelines amount is presumed correct unless one parent can show that amount would be unjust or inappropriate due to their particular circumstances. The court may deviate from the guidelines amount but it must state the reason in its judgment. The basic child support obligation is calculated based on the combined income of both parents and is paid by them proportionately.
In order to modify child support, a substantial change in circumstances must be shown. Child support generally continues until the child graduates from high school or turns 19 years old if still in high school.
Questions for Your Attorney