Spousal support can be awarded by New Mexico courts either during a divorce, after a divorce, or both.

When couples separate, the laws are set up to ensure that one partner does not suffer financial hardship or is forced to live in a way that he or she is not accustomed to. 

Spousal support payments are, therefore, frequently ordered so that the higher-income spouse helps the lower-income spouse to make the transition to self-sufficiency.

Every case is different and is treated according to the unique circumstances that apply. No hard and fast rules exist but there are set guidelines that judges follow when deciding whether or not to award spousal support, calculating it, and deciding how long it should last.

The judge will weigh up the need for spousal support and the ability of the paying spouse to pay it and is free to apply discretion based upon the facts at hand.

Note that spousal support cannot be used as a penalty against one party regardless of marital conduct. For instance, a partner who has been unfaithful in the marriage cannot be penalized by being ordered to pay spousal support.

To apply for spousal support, you must demonstrate the need for it and the judge needs to be confident of the other spouse’s ability to pay.

While there is no set mathematical formula to be used, the courts will consider the following factors in their calculations:

• The length of the marriage
• The age, health and means of support of both spouses
• The current income and potential earnings of each spouse
• The assets and debts of each spouse – and whether the assets provide income
• The reasonable financial needs (based on the marital standard of living, medical needs, etc.)
• The efforts of both spouses to find or maintain employment and to live independently
• The division of property between separating or divorcing couples
• Any relevant agreements made between the parties in the relationship (e.g. prenups or postnups)

Spousal support in New Mexico is further complicated by the fact that there is more than one type. 

In fact, there are four different types of alimony:

1. Indefinite spousal support: paid in installments with no termination date.
2. Transitional spousal support: to supplement the income of a spouse for a limited period of time.
3. Rehabilitative spousal support: to provide training to increase a spouse’s income- earning potential.
4. Lump-sum non-modifiable spousal support: a single lump-sum payment.

Suitability for each type of support is assessed on a case-by-case basis by the court. There is sometimes a preference for rehabilitative spousal support because it allows the recipient to become more self-sufficient in the long term.

However, when most people think of spousal support, they think of either transitional support or indefinite support, which is sometimes known as “permanent modifiable” spousal support or “long term alimony”.

Note that some forms of support are modifiable if and when circumstances change – and others not so. More about the modification of spousal support below.

Whether spousal support lasts indefinitely or for a specific period depends on the type of support awarded by the court.

As its name suggests, indefinite or “long term” spousal support has no defined termination date. It is generally paid until the supported spouse dies or remarries. 

Because this type of alimony can be a significant burden on the paying spouse, it is usually reserved for only the longest marriages – 20 years or more, as a guideline. 

Other circumstances that often apply when this type of alimony is awarded include:

• The recipient spouse was mostly a homemaker and/or cared for the couple’s children in the marriage – and did not earn a significant income.
• The recipient spouse has either a limited education or few employment skills, affecting his or her ability to earn income.
• There is a significant disparity between incomes earned by the two spouses.

Transitional spousal support, which is paid to supplement the receiving spouse’s income, is for a limited period of time that will be specified in the court order. It is designed to help the receiving spouse make the transition to self-sufficiency.

Rehabilitative spousal support is also for a limited time, designed to support a spouse to pursue education, training, or a degree and subsequently earn enough income to become self-sufficient. 

The way that spousal support is paid depends on the nature of the support.

The most common method is for cheque payments or transfers to be made every month for the duration of the support agreement. For indefinite spousal support agreements, this is generally the most viable option.

However, where a lump-sum support arrangement exists, the paying spouse can make a one-time payment of a fixed amount. 

For instance, if a court order exists for the payment of $1000 a month in rehabilitative support for 18 months, the paying spouse may be able to make a single payment of $18,000 to cover the total costs, if both parties agree.

It is best to discuss the implications of a support agreement with a spousal support lawyer or qualified financial planner before agreeing to terms with your spouse.

This is an often-overlooked question – and an important one because many people missed the change in tax laws at the end of 2019.

Spousal support used to be considered as taxable income for the recipient (to be reported on tax returns) and it was tax-deductible for the payor.

Not anymore. The Tax Cuts and Jobs Act eliminated the popular tax-deduction and removed the reporting requirement for recipients.

This can make a significant difference to your finances as a divorcee either paying or receiving spousal support.

Spousal support can be modified if there is a “substantial change in circumstances” for one or both of the parents concerned.

Sometimes, spousal support orders specify that the amount is “non-modifiable” but generally this is not the case. A family lawyer will be able to help you assess whether you qualify for a modification.

Typical examples of grounds for modification include the paying spouse being made redundant or receiving a significant promotion and raise.

Alimony is gender-neutral meaning that either spouse can apply for it in New Mexico. Whether you are eligible for spousal support payments depends largely on whether you need it.

Many factors are weighed up when assessing this – including how well equipped you are to support yourself, whether you need time to get training and acquire skills to enter the workforce, what your lifestyle was like during marriage, whether you have custody of the children (and, if so, what their ages are), and so on.

If you are eligible and the other spouse is able to pay, spousal support will usually be awarded for a temporary period to help you transition to a self-sufficient life. The judge will need to balance both sides of the equation (need versus ability to pay).

If you can support yourself without your ex-spouse’s assistance, or you can be adequately compensated via the marital assets, alimony may be refused by a New Mexico judge even if there is a large discrepancy in incomes.

The following is a set of conditions where alimony will not be awarded in New Mexico, as it is not considered appropriate:

• The paying spouse’s income is less than $20,000 per year
• The marriage lasted less than five years (unless there are exceptional circumstances)
• The marriage lasted less than ten years and both parties can support themselves (and have similar career opportunities)
• The proposed recipient is cohabiting with another individual (not the paying spouse)
• Both parties’ incomes consist only of social security and pensions and their incomes are approximately equal
• The same asset has already been considered in the property division obligation in a divorce (it must be part of one or the other consideration – not both)

New Mexico judges can exercise a great degree of discretion with alimony and can deviate from the guidelines regarding the eligibility for, amount and duration of support.

Alimony is generally considered a temporary measure to provide transitional support for one spouse after a divorce.

In rare cases, however, the support order may be a permanent or indefinite arrangement. This means that it continues until the death of the paying spouse, the death or remarriage of the recipient, or even after remarriage of the recipient if the wording of the agreement allows it. However, this is the exception to the rule because the need for support often disappears after remarriage.

Indefinite spousal support is generally only considered for spouses from marriages that last over 20 years and judges have a great deal of discretion in this matter.

A spousal support order, like any other court order, is legally binding and expected to be followed. As each payment becomes due, it must be paid and cannot be modified at a later date. Failure to pay is taken seriously by the court.

It is possible to collect payments for 14 years after they are due, providing ample time for anyone to collect accrued spousal support.

If your spouse is refusing to pay spousal support, you can file a motion for enforcement or a motion for an order to show cause with the appropriate court.

Wages may be garnished and fines, liens, or even jail time meted out by the judge. The payor of support may also be asked to cover any attorney fees incurred by the recipient for the court action required.