Divorce is a judicial process that terminates the marital relationship while establishing the obligations that remain for each party, such as child support and visitation, spousal support, and the distribution of marital assets and debts. Divorce can be amicable or contentious. Often an attorney can define what your rights are and what you can reasonably expect. New Mexico does not recognize same-sex marriages or civil unions.
Do You Need an Attorney?
The divorce laws in New Mexico are complex, especially if you have children, a business, considerable assets, or suspect your spouse is not forthcoming on financial matters. You may do a self-help divorce in New Mexico if you have no children or few assets, and the marriage was of short duration. The divorce can be handled in a summary fashion—but you should probably consult with a New Mexico divorce attorney in any case.
Getting a Divorce
You can file for a divorce in New Mexico if either you or your spouse have established residency for six months. If you file and serve a complaint for dissolution, the state requires a waiting period of 30 days before the court will grant the divorce.
There are many documents needed for a marital dissolution:
- Petition for Dissolution
- Appearance, Waiver and Consent
- Financial Affidavit
- Marital Settlement Agreement
- Schedule for Visitation of Minor Children
- Parenting Plan and Child Support Obligation
- Child Support Worksheet
- Affidavit Concerning Child Custody
- Final Decree
- Other documents depending on your particular circumstances
Separation and Annulment
If you and your spouse do not want a legal divorce, you can draft a legal separation agreement that addresses the issues of child custody and support, spousal support, division of property and debts, and any other issues that would normally be addressed in a marital dissolution agreement. You may wish to remain married for insurance, religious, or tax reasons.
An annulment renders your marriage invalid as if it never occurred, but you do have to prove grounds for an annulment, such as mental incapacity, physical disability, duress, or fraud.
Types of Divorce
New Mexico allows no-fault divorces based on incompatibility or on grounds of fault. Fault grounds require one party to provide evidence of cruel and inhuman treatment, adultery, or abandonment. But demonstrating any one of these grounds won't necessarily dispose the court to award spousal support or to divide marital property any differently than if the divorce was based on simple no-fault grounds.
Property and Debt Distribution
New Mexico is a community property state, so each spouse is entitled to an equal share of the marital property or the assets accumulated or acquired during the marriage. Assets inherited during the marriage or given as gifts solely to one party are separate property. You can also agree to designate an asset as separate property.
Debts acquired during the marriage are community debts unless the debt was incurred for the benefit of separate assets.
Tax Ramifications of Divorce
Most assets can be divided with no gift tax or other federal income tax implications. You can also divide certain property in a tax-free transfer or swap if made as an incident to the divorce and within one year after the final decree or within six years if made pursuant to a divorce or separation agreement.
If you have child custody, you can claim head-of-household status, the child tax credit, dependent care credit, and earned income credit, although both parents can claim these if physical custody is shared equally. Child support payments are not tax-deductible to the payor and not considered income by the receiving parent. Spousal support, or alimony, is tax-deductible by the giver and taxable income to the recipient.
Consult a New Mexico Divorce Lawyer
A knowledgeable divorce lawyer can ease the strain of a divorce and explain to you the intricacies of New Mexico's divorce laws and how they affect you. Contact a divorce attorney in New Mexico today to discuss your situation.