Making the decision to end a marriage is difficult and, for many, one of the more stressful times in life. A divorce, or dissolution of marriage, can mean deciding who will get to keep the marital home; dividing up assets, as well as debts; discussing alimony; and making major decisions like child custody and child support. A divorce is as unique as the parties seeking to end their marriage and each divorce is different. Talking to an attorney about your individual circumstances and concerns can help guide you through this challenging process.
In New Mexico You Can File for Fault or No Fault Divorce
All states in the United States allow an individual to file for divorce without the need to allege that his or her spouse was “at fault” in some way. Known as no fault divorce, in New Mexico an individual does not need to claim fault in order to have his or her divorce granted. A spouse need only file a Petition for Dissolution of Marriage and state that the marriage no longer works by alleging incompatibility and irreconcilable differences within the marriage.
Although not so in some states, in New Mexico, spouses do have another option when filing for divorce by alleging “fault” on behalf of the other spouse. This is known as fault divorce. According to New Mexico statutes, the grounds for a fault divorce include cruel and inhuman treatment, adultery, or abandonment. This more adversarial option for seeking a divorce includes proving the misconduct, however, and therefore can be more expensive and time-consuming than no-fault divorce. In addition, alleging fault is not considered by the court when determining alimony or child custody and child support. For these reasons, many individuals seeking to end a marriage understandably proceed with a no-fault divorce.
Divorce Alternatives/Uncontested Divorce in New Mexico
Traditional ideas of divorce include protracted litigation and never-ending arguing over property and the children. You may be able to avoid this scenario, however, if you and your spouse agree to get divorced and all of the issues that go along with ending a marriage. Called an uncontested divorce in New Mexico, this type of dissolution of marriage is one where both spouses agree to the asset and debt division, alimony, and child custody and child support issues. If you find you cannot agree on any one of the major issues, however, an uncontested divorce may still be possible with the assistance of a mediator or neutral third party to help iron out your differences. An uncontested divorce, if possible, can help avoid much of the stress, time, and money associated with a more traditional divorce.
Dividing Up the Property
New Mexico is a community property state. In a community property state, marriage is seen as a partnership. As such, each partner owns an equal interest in all property, income, and debt acquired throughout the time they were married. When the decision is made to end a marriage, all of the property and debt will be equally divided.
Property not considered community property is known as separate property and includes any property or debt that was:
- Acquired before the marriage
- Acquired after divorce
- Given to one spouse as a gift
- One spouse’s inheritance
Know also that spouses can enter into an agreement in writing allocating specific property as community or separate property. Courts will typically honor such agreements regardless of how the property is categorized under the law.
Alimony/ Spousal Support
Under New Mexico law, one spouse may be entitled to receive alimony, or spousal support, from the other spouse upon divorce. The court will take several factors into consideration when determining when alimony will be granted, including:
- Age, health, and means of support for each spouse
- Current, future, and earning capacity of each spouse
- Efforts of each spouse to maintain employment
- The reasonable needs of each spouse
- Duration of the marriage
- The amount of property awarded each spouse
- The type and nature of each spouse’s assets
- The type and nature of liabilities
- Income produced by property owned by each spouse
- Any agreement entered into in contemplation of divorce
The court has several options when awarding alimony and can award alimony in lump sum or in installments; it may be rehabilitative or transitional; and may be for a set term or for an indefinite duration.
Child Custody
One of the more difficult and emotional elements of divorce for some is the question of child custody. When determining child custody matters, a court will consider the best interest of the child which can include:
- The wishes of the child’s parents
- The wishes of the child
- Relationship of the child and his or her parents, siblings, and any other who may affect the child’s best interests
- Child’s adjustment to home, school, community
- The mental and physical health of all involved
In New Mexico, the court may consider where the child would like to live if the child is fourteen years of age or older.
Child Support
New Mexico law provides child support guidelines which are to be followed when determining an award of support. Factors that the court will consider when awarding child support are:
- Gross monthly income
- Percentage of combined income
- The number of children
- Expenses for the child including child care and insurance premiums
Call the Attorneys at Legal Solutions of New Mexico to Talk About Your Divorce
Sometimes divorce can be straight-forward, and if both spouses agree on the major issues, ending the marriage can be quick and fairly easy. For many, however, divorce is a difficult and arduous process that is both emotionally draining and physically taxing. Talking with a qualified family law attorney can help you through this trying process and ensure the divorce proceeds fairly and with you and your children’s’ best interests in mind. Call the attorneys at Legal Solutions of New Mexico to schedule an initial consultation and to talk to a family law attorney about your divorce.