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.