Questions About Divorce in New Mexico

Do you have questions about divorce?  Most people do.  The Common Questions listed below gives you the answers to the questions most often asked about divorce.

Under New Mexico law, is a final judgment of dissolution of marriage appealable?

Yes.  If you believe the judge made a mistake in the final divorce decree (also called dissolution of marriage), you can appeal the order.  If you choose to do so, you have thirty days after the dissolution to file an appeal.  Rule 12-201 NMRA.

Under New Mexico law, how can judicial errors in a family law case be remedied?

If you feel a judge has made an error in your case, you have several potential remedies.

You may bring a motion for a new trial or reconsideration. This means that you are asking the judge to throw out the original decision and have a new trial. You may also ask the judge to reconsider his or her decision, usually because the judge made an error in the decision. The judge may order a new trial, change his decision, or deny the motion. Rule 1-059 NMRA. You must file a new trial motion within thirty days of the judgment. Id.

In certain circumstances, you may be able to ask the trial judge to modify or vacate a dissolution of marriage. Rule 1-060 NMRA. These grounds are limited to (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which would not have been found in time to request a new trial; (3) fraud; (4) the judgment is void (for example, if you were not served properly); (5) it is no longer “equitable” (fair) that the judgment should continue; or (6) any other reason that would justify the judge changing the order. Id. You must request this within a reasonable time, and a request based on reasons (1), (2), or (3) must be brought within one year of the dissolution. Id.

If circumstances have changed since the decree was issued, you may also ask the court to modify the provisions of the divorce decree. NMSA § 40-4-7(B)(2). For instance, you may be able to adjust the amount of spousal support called for under the decree.

Finally, you can appeal your case to the New Mexico Court of Appeals within thirty days of the decree. The Court of Appeals is an error-correcting court. (See: Under New Mexico law, what are the respective functions of trial courts and appellate courts in a family law case?). The Court of Appeals does not consider new evidence, and it will either affirm the judge’s decision, modify the decision, or reverse the decision. It may also “remand” the case to the trial judge, which means it will return the case to the trial judge for additional consideration.

Under New Mexico law, what are the respective functions of trial courts and appellate courts in a family law case?

Trial courts are where your case begins. The trial judge hears testimony from witnesses and receives exhibits. You may hear this (i.e., the testimony and exhibits presented to the trial judge) referred to as “the record.” The judge then evaluates the evidence and makes a decision regarding the dissolution of marriage and any spousal support, child custody and support, and property distribution.

The court of appeals does not receive any new evidence. It reviews “the record” from the trial court, and it decides whether the trial judge made any errors.

Under New Mexico law, what is the difference between divorce and legal separation?

“Divorce” completely ends the marriage or “bonds of matrimony.” Gilmore v. Gilmore, 1988-NMCA-004, ¶ 13, 106 N.M. 788, 791, 750 P.2d 1114, 1117. Once a divorce is complete, the spouses may remarry. In a divorce, the judge will order the marriage dissolved, divide any property, establish any spousal support, determine child custody, and order child support. NMSA §§ 40-4-3, 4-40-7.

“Legal separation” is when the husband and wife have permanently separated and no longer live together (or no longer live together as husband and wife), but the parties remain legally married. NMSA §§ 4-40-3; Gilmore, 1988-NMCA-004, ¶ 13. Sometimes, you may see a “legal separation” called a “divorce from bed and board.” Gilmore, 1988-NMCA-004, ¶ 13.

As with a “divorce,” spouses who have “legally separated” may seek a division of property, custody of the children, and alimony. NMSA § 4-40-3; Gilmore, 1988-NMCA-004, ¶ 13. Unlike “divorce,” “legal separation” does not require a court decree, but New Mexico law does recognize court-sanctioned separations. NMSA § 4-40-3; Gilmore, 1988-NMCA-004, ¶ 12. Spouses may mutually consent to a “legal separation” without going to court, but their agreement must be in writing. NMSA §§ 40-2-4 to -9, 40-4-3; Gilmore, 1988-NMCA-004, ¶ 13.

With legal separation, neither spouse can remarry. NMSA § 30-10-1.

Under New Mexico law, what must be proven to obtain a divorce?

First, before you can seek a divorce in a New Mexico court, one of the spouses must have resided and had “domicile” in the state for at least six months immediately prior to the filing of the divorce petition. NMSA § 40-4-5. “Domicile” means one spouse is physically present and lives in the state with a good-faith intent to stay permanently or indefinitely in New Mexico. Id. Other requirements may apply where one spouse is a military member. Id.

In New Mexico, you can obtain a divorce based on any one of the following grounds: (1) incompatibility; (2) cruel and inhuman treatment; (3) adultery; or (4) abandonment. NMSA § 40-4-1.

New Mexico recognizes a “No-Fault Divorce,” which means that if you are seeking a divorce, you do not need to show any fault by your spouse. Where the ground for divorce is “incompatibility,” the judge does not assess misconduct, fault, or blame. Medina v. Medina, 2006-NMCA-042, 139 N.M. 309, 313, 131 P.3d 696, 700. Rather, “incompatibility” exists when, “because of discord or conflict of personalities, the legitimate ends of the marriage relationship are destroyed preventing any reasonable expectation of reconciliation.” NMSA § 40-4-2. What this means is that you and your spouse cannot reconcile, or resolve, your differences, and the marriage cannot be saved. You may hear terms like “irretrievably broken” or “irreconcilable,” but it generally means the marriage simply cannot be fixed. The judge will ask whether the spouses can reconcile, and if they can’t, the judge will grant the divorce. Pavletich v. Pavletich, 1946-NMSC-034, ¶ 13, 50 N.M. 224, 229, 174 P.2d 826, 829.

While you do not necessarily need to be living separately, courts may wonder if the marriage is truly “irretrievably broken” if you and your spouse continue to reside together. Joy v. Joy, 1987-NMCA-031, ¶ 11, 105 N.M. 571, 574, 734 P.2d 811, 814. Courts generally do not want to separate spouses who have not separated themselves. Id.

The other three grounds for divorce are less common because you must show “fault.” However, the facts for these grounds could very well be the same facts that establish “incompatibility.”

Under New Mexico law, what must be proven to obtain a legal separation?

The fundamental requirement for legal separation in New Mexico is permanent separation. NMSA § 40-4-3. Spouses must have (1) permanently separated and (2) no longer live together or no longer live together as husband and wife. Id. You may still live with your spouse, but you must not live together as husband and wife. Id. If these two requirements are met, then a spouse may go to court to ask for a division of property, custody of the children, or alimony without seeking a full divorce. Id.

You do not necessarily need to go to court to legally separate. NMSA §§ 40-2-4 to -9, 40-4-3; Gilmore, 1988-NMCA-004, ¶ 13. If you and your spouse can agree to terms regarding the legal separation, you can put them in writing. NMSA §§ 40-2-4 to -9, 40-4-3; Gilmore, 1988-NMCA-004, ¶ 13.

Under New Mexico law, what is spousal support or alimony?

“Spousal support,” sometimes called “alimony,” is payment of money by one spouse to the other spouse for “maintenance and support” during legal separation or following a divorce. Alimony, BLACK’S LAW DICTIONARY (10th ed. 2014). Spousal support is intended to support the receiving spouse as he or she had been supported during the marriage. You can think of spousal support as a substitute, or continuation, of the right to support. Clark v. Clark, 2014-NMCA-030, ¶ 13, 320 P.3d 991, 995. Spousal support is not a penalty, and it is not intended to punish the paying spouse. Foutz v. Foutz, 1990-NMCA-093, ¶ 8, 110 N.M. 642, 644, 798 P.2d 592, 594. Courts do not take infidelity into account when deciding whether or how much spousal support is appropriate. Id.

A court may award spousal support in several ways. NMSA § 40-4-7(B)(1). The judge may order rehabilitative spousal support (for education, training, etc.); transitional support (to supplement income for a limited time); indefinite spousal support (support for an unlimited time); a single sum to be paid in installments (subject only to the death of the receiving spouse); or a single sum with no contingencies. Id.

Under New Mexico law, what circumstances can excuse the payment of alimony?

First, the judge’s decision to award alimony is guided by law—the judge cannot just decide to award an arbitrary amount of spousal support. (See: What is Spousal Support or Alimony?) See NMSA § 40-4-7(E). Each case is different, and the judge will decide the amount of alimony that you owe based on your unique circumstances. The judge considers ten factors in determining an amount of alimony:

  1. the age, health, and means of support of each spouse;
  2. the current and future earnings as well as the earning capacity of each spouse;
  3. the good faith efforts of each spouse to maintain employment or become self-supporting;
  4. the reasonable needs of each spouse, including (a) the standard of living for each spouse during the marriage; (b) the cost of medical insurance for each spouse; and (c) the appropriateness and cost of life insurance for each spouse;
  5. how long the marriage lasted;
  6. the amount of property awarded to each spouse;
  7. the type and nature of assets owned by each spouse;
  8. the type and nature of each spouse’s liabilities;
  9. any income from property owned by each spouse; and
  10. agreements of the spouses in contemplation of the divorce or legal separation.

Id.

Most likely, if you earn more money or have more assets than your spouse, you will probably have to pay alimony. You can, of course, agree on alimony terms, and you may be able to pay a single sum alimony instead of monthly payments. NMSA § 40-4-7(B)(1).

Your alimony obligation may also change over time. If circumstances change, you may ask the judge to lower the amount of alimony you pay. NMSA § 40-4-7(B)(2). (Your ex-spouse may also seek to modify an order. Id.) The biggest question is, what are the needs of your ex-spouse? Cherpelis v. Cherpelis, 1996-NMCA-037, ¶ 6, 121 N.M. 500, 501-02, 914 P.2d 637, 638-39. Remarriage may terminate any spousal support obligations. Galassi v. Galassi, 2009-NMCA-026, ¶ 23, 145 N.M. 630, 635, 203 P.3d 161, 166. Similarly, a new “live-in” relationship by your ex-spouse may affect your obligation. Cherpelis, 1996-NMCA-037, ¶ 6.

Under New Mexico law, how is the amount of child support calculated?

New Mexico has child support guidelines for the judge to follow. NMSA §§ 40-4-11; 40-4-11.1. The judge does not take into consideration any financial assistance or welfare payments made to, or on behalf of, the children. NMSA § 40-4-11. Generally, child support falls into two categories: “basic visitation” or “shared responsibility.” NMSA § 40-4-11.1(D).

“Basic visitation” means one parent has physical custody and the other parent has visitation less than thirty-five percent of the time. Id. “Shared responsibility” means each parent provides a suitable home for the children and the children spend at least thirty-five percent of the year in each home and the parents significantly share the duties, responsibilities, and expenses of parenting. Id.

In cases of “basic visitation,” you and the other parent will need to provide information regarding your income; the other parent’s income; the number of children you have together; the “basic support schedule” [LINK]; the children’s medical and dental premiums; the costs of work-related child care; additional expenses for the children (e.g., uninsured special medical, dental, and counseling over $100 per child per year; special educational expenses; and transportation or communication costs for long distance visitation). NMSA § 40-4-11.1 Work Sheet A.

In cases of “shared responsibility,” the judge will also consider the amount of time spent living with each parent, but he or she will apply different formulas. NMSA § 40-4-11.1 Work Sheet B.

Depending on certain circumstances, the judge may “impute” income to you or the other parent. Styka v. Styka, 1999-NMCA-002, 126 N.M. 515, 522, 972 P.2d 16, 23. This means that the judge may add income into its calculations. For example, income can be “imputed” to a parent who is unemployed or underemployed and does not act in good faith to seek full time employment. State ex rel. Human Servs. Dep’t v. Kelley, 2003-NMCA-050, ¶ 13, 133 N.M. 510, 513, 64 P.3d 537, 540. In such cases, even if the parent is not trying to avoid paying child support, the judge will ask whether the parent’s career choice is reasonable under the circumstances. Id. ¶ 14.

Under New Mexico law, can a lawyer represent both parties to a divorce?

Normally, attorneys are prohibited from representing two people who are opposing each other in the same case.  Rule 16-107 NMRA of the Rules of Professional Conduct.

Under New Mexico law, does a petitioner in a divorce case enjoy any legal rights or benefits not enjoyed by the respondent?

It generally does not matter who files first. However, if you are properly served with divorce papers, then you must file an answer within thirty days or the judge may enter a default judgment against you.

Under New Mexico law, what can a respondent do to contest a divorce?

Since New Mexico recognizes “No-Fault” divorces, there is no “defense” to a divorce.  If “incompatibility” exists between the parties and the New Mexico residency requirement is met, the judge must grant the divorce.  Spruyt v. Spruyt, 1993-NMSC-020, ¶ 5, 115 N.M. 405, 406, 851 P.2d 1072, 1073.  (See: What is Required to Get a Divorce?)  However, divorce (or legal separation) will determine your legal rights including alimony, child support, and property division, all of which you can challenge.

Can I take money out of the bank prior to filing for divorce or during the proceedings? Under New Mexico law, how are joint assets treated immediately before and during a divorce proceeding?

Nothing explicitly stops you from taking money out prior to the start of the divorce (or legal separation proceedings).  However, you should keep in mind that New Mexico is a “Community Property” state so your spouse also has an interest in the bank account, which may factor into subsequent divorce proceedings.  This may also lead to an angrier and more unpleasant divorce too.  (See: What is a collaborative divorce?)

However, once divorce or legal separation proceedings (or agreements) begin, the court can divide property, including bank accounts.  NMSA § 40-4-3.

Under New Mexico law, can a person deny his or her spouse access to joint property during a divorce proceeding?

New Mexico is a “Community Property” state, which means that most property, including the home, belongs to each spouse. As such, unless a judge issues an order (i.e., says you are allowed to do so), you likely cannot change the locks to keep your spouse out of your marital home.

However, if you are “legally separated” or have begun “divorce” proceedings, you can ask the judge to decide how to divide property. (See: What is the difference between a divorce and a legal separation?) NMSA § 40-4-3; Gilmore v. Gilmore, 1988-NMCA-004, ¶ 13, 106 N.M. 788, 791, 750 P.2d 1114, 1117.

In cases of domestic violence, a judge may grant you sole possession of the home and may restrict your spouse’s access to the home. NMSA § 40-13-16. (See: What is Domestic Violence?)

Under New Mexico law, is evidence of counseling services admissible in a divorce case?

Normally, your conversations with a therapist and therapy records are “privileged” and cannot be used in court without your permission. Rule 11-504 NMRA. New Mexico also has a law called the Victim Counselor Confidentiality Act that makes communications between certain counselors and victims of sexual assault or family violence privileged. NMSA § 31-25-1, et seq. (See: What is Domestic Violence?) Medical records, including mental health records, are also covered by the federal Health Insurance Portability and Accountability Act (HIPAA), which prevents disclosure without consent or a court order. 45 C.F.R. § 164.508.

There may be exceptions, but if your spouse wishes to obtain the records or use them, he or she will have to convince the judge of a compelling reason to do so.

How long do divorce cases last?

Each couple’s situation is unique, and the time for each case will vary. Cases that have more complex issues, such as child custody, property divisions, etc., will take longer. One option that may shorten the process for you is a collaborative divorce. (See: What is a collaborative divorce?)

Under New Mexico law, how is domestic violence legally defined?

“Domestic violence” is sometimes called “family violence.” This means that some form of violence is committed against a family member, or against the person with whom he or she has an intimate relationship or is dating. NMSA § 40-13-2. Family members include present and former spouses, parents in-law, or stepparents; grandparents and grandparents-in-law; children, stepchildren; grandchildren; or co-parents. Id.

Domestic violence includes stalking and sexual assault; incidents resulting in physical harm, severe emotional distress, bodily injury or assault; threats causing imminent fear of bodily injury to any family member; criminal trespass; criminal damage to property; repeatedly driving by a residence or work place; telephone harassment; harassment; or harm or threats to harm to children. Id.

Under New Mexico law, what is collaborative divorce?

Collaborative divorces have been growing in popularity in recent years. Collaborative divorce requires the participation of both parties and focuses on reaching mutual agreement for divorce, the disposition of property, alimony, and child custody. The primary focus is to assist the spouses in respectfully reaching a resolution in a safe environment.

This safe place is established by a “participation agreement,” under which the spouses and their attorneys agree not to go to court. If they cannot resolve the dispute, the attorneys will not represent the spouses in court. This way, the spouses do not need to worry that what they say in the collaborative divorce may be used against them in court. The focus is on taking the adversarial nature of court cases out of the decision making. Mediators, mental health professionals, child evaluators, financial planners, and other professionals may also participate in the collaborative divorce.

Collaborative divorce has been shown to help reduce the impact of conflict on children (and the spouses) and often saves time and money.

Resources:

https://www.collaborativepractice.com

Glen L. Rabenn, et al. Marc R. Bertone, Paul J. Toohey, Collaborative Divorce-A Follow Up, 55-APR ORANGE COUNTY LAW 32 (April 2013)

Susan J. Gamache, Family Peacemaking with an Interdisciplinary Team: A Therapist’s Perspective, 53 FAM. CT. REV. 378 (2015)

My wife / husband filed for divorce. What should I do?

First and foremost, remain calm. Divorce is often a stressful experience for people involved. You should consider if you want to hire an attorney. If you decide you are going to hire an attorney, you should contact her as soon as possible so that she has time to talk to you and respond to the petition.

You must file an answer to the divorce petition within thirty days after it was served on you. Rule 1-012 NMRA. If you do not answer the divorce petition, the judge can enter a default judgment against you, which may include unfavorable terms regarding spousal or child support, property division, or other matters. Rule 1-055 NMRA.

Under New Mexico law, how are child support and alimony different?

Both child support and alimony (also called spousal support) involve one spouse making certain payments to the other spouse, and in both cases, the judge will consider certain factors in deciding how much to award. Both can also be ordered by a judge during legal separation, pending divorce, and after the divorce. NMSA § 40-4-3.

In cases of child support, the spouse is ordered to make payments to the other spouse for support of the child. (See: How much child support will I receive?) With alimony, the spouse is ordered to make payments to the other spouse for the support of the spouse. (See: What is spousal support or alimony?). Child support focuses on the best interests of the child and does not have anything to do with the marriage or relationship of the parents.

My spouse and I have negative equity in our house. How do we deal with that in a divorce?

In divorce proceedings, you and your spouse can divide both assets and debts by agreement, and the judge can order a division of the property. Irwin v. Irwin, 1996-NMCA-007, ¶ 10, 121 N.M. 266, 269, 910 P.2d 342, 345. The court will “equitably,” that is, fairly, divide the property by first looking at the value of the married couple’s “community” property and then deduct the amount of any debts. Id.

If you choose, one spouse may agree to take on the home and the mortgage with the negative equity. You may also wish to do a short-sale of the home (selling the home and taking the loss in equity) and then divide the proceeds from the sale. The circumstances, time, economy, and your financial needs will determine the best course of action for you.

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