Divorce in New Mexico

Residency Requirements and Grounds for Divorce

Residency Requirements and Grounds for Divorce

Either you or your spouse must be a resident of New Mexico for at least six months immediately preceding the date of filing for divorce and either you or your spouse must have a home in New Mexico. The legal divorce process begins when one spouse files a petition for dissolution of marriage in the district court of any county where either spouse resides.

You may obtain a divorce in New Mexico based on any of the following grounds:

Incompatibility
Cruel and inhuman treatment
Adultery
Abandonment

Incompatibly exists when, because of discord and conflicts of personalities, the legitimate ends of the marriage relationship have been destroyed preventing any reasonable expectation of reconciliation.

Dividing the Property

New Mexico is a "community property" state. Community property is property owned by you and your spouse as a result of having acquired it during your marriage by means other than through inheritance or as a gift to one of you. Each spouse keeps his or her separate property acquired prior to the marriage and any gifts or inheritances, but community property is divided equally between the two of you. Marital fault is not considered in the property division.

It is important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth and details such as account numbers, serial numbers and so forth. Collecting this information before you see a New Mexico divorce lawyer 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 may be in the form of property or a sum of money. If money, payment may be in either a single sum or installments. Any of the following types of spousal support may be awarded:

Rehabilitative spousal support that provides the receiving spouse with education, training, work experience or other forms of rehabilitation in order to increase his or her ability to earn income and become self-supporting
Transitional spousal support may be provided to supplement the income of the receiving spouse for a limited period of time
Spousal support for an indefinite period of time
A single sum to be paid in one or more installments in specified amounts

The first three types of spousal support may be modified if circumstances require a change and the support has not been designated as nonmodifiable.

In deciding whether to award spousal support, the court will consider such factors as:

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 maintain employment or to become self-supporting
Reasonable needs of the spouses
Length of the marriage
Amount of property awarded or confirmed to each spouse
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 entered into by the spouses in contemplation of divorce or separation

Child Custody and Visitation

In New Mexico, the court may order joint or sole child custody based upon the best interests of the child. There is a presumption that joint custody is in the best interests of the child. The court will not prefer one parent as a custodian solely because of gender.

To determine what is in the best interests of a child under the age of 14, the court will consider several factors:

Wishes of the child's parent or parents as to the child's custody
Wishes of the child as to custody
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 considers the desires of the minor as to with whom he or she wishes to live with before awarding custody.

In determining whether a joint custody order is in the best interests of the child, the court will also consider the following factors:

Whether the child has established a close relationship with each parent
Whether each parent is capable of providing adequate care for the child throughout each period of responsibility
Whether each parent is willing to accept all responsibilities of parenting
Whether the child can best maintain and strengthen a relationship with both parents through predictable, frequent contact and whether the child's development will benefit from involvement with and the influence of both parents
Whether each parent is able to allow the other to provide care without intrusion
The suitability of a parenting plan for the implementation of joint custody
Geographic distance between the parents' residences
Willingness or ability of the parents to communicate, cooperate or agree on issues regarding the child's needs
Whether a judicial adjudication has been made in a prior or the present proceeding that either parent has engaged in domestic abuse against the child, spouse or other household member

If one parent is awarded sole custody, the other parent is usually awarded visitation rights by the court. Visitation is a period of time available to the noncustodial parent when the child resides with or is under the care and control of the noncustodial parent. 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 determines that 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. There is a presumption that the guidelines amount is correct unless one parent can show that the 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 for the deviation 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.

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