Albuquerque Divorce Lawyers
Seeking a divorce in New Mexico will require that you go through a series of steps in order to handle the process smoothly and without issue. Divorce is characterized as the legal action enacted between two people to end a marriage. This sounds simpler than it is since the process also involves deciding the division of property and debts among the two parties.
If a child is involved, then the case will also involve matters of custody and support. You will need to have lived in New Mexico for six months previously in order to file for divorce here. If this requirement is met, then you may approach a New Mexico family court with the matter.
Our Albuquerque divorce lawyers have created a guide to provide you with some legal information about divorce to give you a better insight on what to expect.
5.Marital Property Division
7.Frequently Asked Questions
Basics of New Mexico Divorce Court
The first step to obtaining a divorce is to file a petition and other papers to a district court near you or near where your spouse lives. You will need to establish residency in order to show that you are a New Mexico resident before completing the proper paperwork. Once you pay the fee, unless the judge has approved a free process, both parties will need to sign the divorce packet.
Your spouse will have thirty days to respond to the divorce papers, this answer will be filed by the court as their opinion on the papers. When your spouse does not respond to the petition, then the result is a default judgment where everything asked for in the petition is granted. This judgment is overruled if your spouse provides the court with adequate reasoning for the later answer.
It is not a requirement that both parties agree to the divorce and both are free to marry again after the divorce. The divorce process is not finalized until the judge signs the Final Decree of Dissolution of Marriage.
Filing for Divorce
You may file for divorce if you state before the court, under oath, that both you and your spouse are no longer compatible. The grounds for divorce in New Mexico include:
Cruel/Inhumane Treatment or
This is an important step for the case since it will set the precedent for other aspects such as custody and child support. You can work with your divorce attorney to build a case for any of these reasons and bring the case before the court of law if your spouse refuses to accept a settlement.
When you go before a judge, then one of the first suggestions will be to settle and negotiate matter through mediation. With mediation, both parties can attempt to reach a mutually beneficial understanding. If your differences are irresolvable and an agreement cannot be found, the matter will be brought to divorce court.
It is highly recommended having a divorce attorney with you at this stage to best present your case and protect your rights. A single mistake here can make a huge difference and it is easy to miss small details without the help of a legal professional.
New Mexico Annulment
An annulment and a divorce are only similar in that they’re both court procedures that end a marriage. The big difference is that an annulment will completely wipe a marriage off of any records. The grounds for annulment are different from those of divorce and include:
One of the parties was below the age of 16 at the time of marriage
One of the parties was below the age of 18 and married without parental consent
The marriage was illegal due to:
The parties being too closely related
One of the parties already being married at the time
The annulment process follows the steps of divorce closely and results in the marriage being considered completely void. Children are considered to be legitimate by the court, and the husband will continue to be considered the father until proven otherwise.
The judge presiding over the matter can make decisions concerning child custody and child support. In terms of property, the court distributes it, in the same manner, it would during a divorce case. In which case, a legal representative will be able to legally represent your voice in the matter.
Though some divorces are amicable, other instances of divorce become adversarial. Tensions can rise, emotions can be running at a fever pitch, and two people who once lived happily may be going head-to-head for a variety of intensely personal reasons. Ideally, a divorce is uncontested, which means that the two parties reach a mutual agreement easily and can quickly move on with their lives.
However, this may simply not be an option. A contested divorce is often unavoidable. No matter whether your divorce is contested or uncontested, it’s important to seek out a properly qualified divorce attorney. A good lawyer can help you deal with a whole host of factors that may come into play as a contested divorce gets sorted out. The following is a list of some of the top tips and factors to consider as you’re facing a contested divorce.
Accrue Asset Awareness
Maintain full awareness of your assets. For your personal knowledge and for the sake of informing your lawyer, asset awareness plays a major role in making the entire divorce process go smoothly. You should not only know what you own but know what your spouse owns.
This could include property, business shares, bank accounts, and more. Asset awareness is imperative if you want to make sure that everything is divided in a fair manner. It helps to make sure that each party receives what they rightfully deserve.
Maintain Debt Awareness
The same concept of awareness can be applied to debts. Calculating credit card debt, mortgages, and other kinds of debt will help you maintain a realistic view of what you and your spouse will both be responsible for.
Rather than making a slapdash effort that causes worry, debt awareness can help you stay grounded, analytical, and find a solution that holds both parties accountable.
Avoid Legal Advice From Family
Family members typically want what’s best for you, but if they aren’t lawyers themselves, they may be giving you bad legal advice. Personal bias and an unrealistic view of the judicial system can lead to incorrect and ill-informed advice. Make sure that you follow the advice given only by qualified legal professionals who are familiar with the in’s and out’s of your case.
Your family should be there to support you emotionally, but it’s important that they don’t act as your legal counsel if they are not actually lawyers. You hire a trained professional for that job: to ensure your case moves in the right direction so that you can achieve optimal results.
Make Sure You’re Fully Prepared
Carrying out a contested divorce can be an intense process. The opposing counsel may focus on areas that you would rather not talk about. It’s important that from the beginning, you are honest with your own counsel.
Remember: your communication with your personal lawyer is confidential. Your lawyer can help prepare you for any contested divorce situation that may arise. The goal is to speak your side truthfully and to achieve a fair outcome. Preparation and honesty is the key to doing exactly that.
No couple enters a marriage thinking that they will get a divorce. That being said, many couples do not end up lasting forever. Divorce may be a necessary step for both parties to continue to live their best lives. Even if your divorce is uncontested, the assistance of a qualified lawyer may still be in your best interest.
A wide array of positive benefits come from enlisting the help of an attorney. If a divorce must happen, an uncontested divorce is an optimal situation. Both parties can maintain a civil discussion, which keeps legal costs down and ensures minimal involvement of the courts. An uncontested divorce helps spare both parties with much emotional hardship. An uncontested divorce is also preferable for the following reasons:
Uncontested Divorce Benefits
The process of an uncontested divorce is significantly cheaper. It’s unlikely that you will even see the inside of the courtroom. Typically, several matters are solved in the courtroom, but you may be able to handle the following items yourselves:
Division of Property
A judge doesn’t always know what is valuable to which spouse. When ruling on items of objective value, the judge has to rule from a stance of monetary tags, as opposed to the significance the item may have to each person. An uncontested divorce allows the two parties to come to an agreement on items of values and divide things that are truly sentimental such as heirlooms and other items.
Spending time in a court is never a cheap experience. There are legal fees, lawyer fees, filing fees, and these re-occur each and every time you must appear. Instead of spending excessive funds on court costs, you and your spouse will each be able to spend your money on other things that can enhance and improve your respective lives.
An Uncontested Divorce is Easier on Children
A messy divorce that involves children can become a very emotionally draining situation for all parties involved. In contrast, an uncontested divorces allows the adults to accept that their situation may have come to an end, while sparing their children emotional trauma. In an uncontested divorce, the two parties are acting civil enough to keep their feelings and children’s future in mind.
While every child’s life does change significantly in the course of the divorce, especially if they will begin moving between households or start living with a single parent permanently, there are ways that the two parties getting divorced can minimize the disruption to children.
An Uncontested Divorce Has Less Drama
A contested divorce can lead to spite and negative emotionally-driven situations. It can bring out a lot of ugly pieces of the past. It’s important to minimize this negativity, especially if there are children involved. It’s in the interest of every family member to move things in a positive direction.
An uncontested divorce may be a more honest reckoning of the situation. Both parties seek to share assets and debts in a way that is fair. The spouses seek to make the most of their situation for both themselves and their loved ones. Seeking an uncontested divorce means that both parties are recognizing the core elements of what is at stake: quality of life, emotional health, and the wellbeing of their children.
If you have recently (or not so recently) gotten married, and have come to realize that a prenuptial agreement would have been a good idea, you have nothing to worry about. Luckily, you can still make a similar agreement with your spouse in the form of a postnuptial agreement. A divorce lawyer will be able to work with you and your spouse to determine what steps you need to take, what terms must be included in the document, and how to be sure it is valid in the New Mexico family courts.
Postnuptial agreements are essentially the same thing as a prenuptial agreement, with the only difference being the timing. You can still agree to the same terms, provided that everything included is legally viable.
What Goes Into a Postnuptial Agreement?
Postnuptial agreements can have identical provisions as a prenuptial agreement. Some of the most common details included in both agreements are the following:
1. Property Division
Property includes physical property such as real estate, as well as financial assets like stocks, bonds, savings accounts, 401Ks, and other monetary holdings. This is often one of the biggest disputes in Albuquerque divorce law.
2. Terms of Spousal Support
If the couple determines that one spouse will pay support to the other, the length of time these payments will last after a divorce will be included, as well as the amounts. Conversely, the agreement may state that there will be no spousal support at all.
3. Division or Handling of Marital Debts
Debts, like assets, are addressed in a postnuptial agreement, and specifies how they will be divided between the spouses in the event of a dissolution of the marriage. This is especially helpful if one partner owns or manages a business or other “separate” high-value operations that also deal with a lot of debt.
4. How Assets Will Be Distributed In the Event Of a Death
While this may also be addressed in a will, the postnuptial agreement will specify how the will may be handled in the event that the marriage is in the middle of a divorce while the death takes place. Otherwise, this could create a long, drawn-out legal battle between the family.
Are Postnuptial Agreements Enforceable?
There are a lot of different factors that go into determining the validity of a postnuptial agreement and if the document does not meet the requirements, it is unlikely that a judge will follow it. Here are some things that are very important to be certain that your agreement sticks:
1. It Is In Writing
It might be fairly obvious, but trying to prove an agreement existed if there is no physical copy of the agreement is extremely hard, and will not stand up in court. Have the agreement in writing and signed with witnesses.
2. Spouse Was Not Coerced Into Agreeing
If, during a divorce, it comes to light that one of the spouses signed the agreement under duress, they can argue that they did not truly agree to the terms.
3. Both Spouses Are Aware Of It
During the course of a divorce, one spouse can not simply pull out an agreement that the other was not aware of and claim it is legally valid.
4. Both Spouses Were Fully Aware Of The Other’s Financial Situation At The Time
Each spouse must fully disclose their current financials at the time of the agreement, including any liability, debts, assets, liens, and anything else relevant.
5. The Agreement Is Fair
If a judge looks at a postnuptial agreement and determines that is completely one-sided or unfair to one of the spouses, they will not uphold it even if everything else is completed properly.
6. The Agreement Is Properly Executed
This means that each spouse signs the document, it is notarized, there are witnesses if required, and that it fulfills all points under New Mexico law.
Should You Get a Postnuptial Agreement?
Prenuptial and postnuptial agreements are more and more common, and there is nothing wrong with getting one. In fact, your marriage may be stronger because of it. They are not mandatory, of course, but many couples feel a lot more secure in their marriage knowing that they have already had these uncomfortable conversations that they hope they never need to revisit.
Marital Property Division
The only way a judge can divide items is according to their perceived monetary value. A judge cannot ascertain or quantify sentimental value for one or both spouses: an item is simply a price tag. In court, items may be divided equally according to this measuring stick.
In order for both parties to exit the courtroom as happily as possible, you must work with a qualified attorney to ensure a fair and intentional outcome. An attorney can also help you work more directly with your spouse, which will ensure equitable and mutual gain.
Click here to learn more about Marital Property division.
Click here to learn more about Property division agreements.
Alimony is not guaranteed in all divorces, but there are many situations where a court (or each spouse, regardless of court involvement), will agree that these payments are well-warranted. In many marriages, there is one spouse who makes the majority of the collective income, which renders the other spouse dependant on at least a portion of their income.
In the state of New Mexico, divorcing spouses commonly request the provision of alimony. Alimony may fall under three different subcategories:
- Long-term alimony
- Transitional alimony
- Rehabilitative alimony
Click here to learn more about Alimony or Spousal support.
Frequently Asked Questions
How Long Will My Divorce Take?
No two divorces are the same, meaning there is no set amount of time that your divorce will take. There are many factors to consider, such as your spouse’s willingness to cooperate, the complexity of your finances that need to be divided, the children involved, and more.
There are a variety of options that you can take during a divorce, including uncontested divorce or a contested divorce.
For Uncontested Divorce
In an uncontested divorce, you will reach agreements on all major issues of your divorce without a trial, and will simply approach a judge showing you have agreed to everything in order to finalize the divorce. The amount of time will vary mostly on how long it takes you and your spouse to reach a final agreement.
For Contested Divorce
A contested divorce is much more complicated and time-consuming. First, you must attempt to reach an agreement outside of the court, and when you have determined that no agreement will be made, you must move to actual litigation. You will then need to go through a discovery process, interviews, and finally, a trial. During this time, you are waiting on the courts to set any and all dates. After a trial is completed, there is the additional chance of an appeal, which may take years.
How Much Alimony Will I Need to Pay?
Alimony payments depend on a variety of factors in your marriage, such as
- the length of the marriage,
- the income disparity between spouses,
- possible prenuptial agreements, and
- the overall financial health of the family
Your attorney will be able to work with you closely to determine fair alimony amounts and the length of time they will be paid.