The main difference between being able to divorce and a legal separation in New Mexico is the requirement that a couple must satisfy prior to being allowed to get a divorce. New Mexico only has one requirement prior to a couple being able to get a divorce — this is a residency requirement in which one of the spouses must reside in New Mexico for at least six months before they can file for a divorce.
A legal separation however does not have this same residency requirement. Both a divorce and a legal separation in New Mexico require you to file legal paperwork and go to court. While a legal separation deals with many of the same issues that are resolved through divorce (such as distribution of assets and child custody) you will still be legally married to your spouse.
On the other hand, when you get a divorce, you are now legally a single person and are free to marry someone else. There are four grounds for which New Mexico will grant a divorce, which are: incompatibility, cruel and inhuman treatment, adultery, and abandonment.
What Paperwork is Needed to File for Divorce in New Mexico?
In order to start the divorce process in New Mexico, you will need to file a “Petition for Dissolution (with children)” if you have kids. If you do not have kids, you will need to file a “Petition for Dissolution (without children)”.
Both of these forms can be accessed online. You may fill out the form and then file it in the district court of the county that you or your spouse lives in. There are separate forms for couples with children and couples without children, as there are different legal issues that can arise in each situation. After you file, then you must notify your spouse of the divorce through a court summons.
How Does Community Property Differ from Separate Property According to New Mexico Law?
New Mexico operates as a community property state. This means that the court will divide all of the community property equally between you and your spouse. Community property is defined as property that both spouses acquired during the marriage, Any property that is your separate property will not be affected by the divorce.
In the state of New Mexico, separate property is any property that:
- Was acquired prior to getting married;
- Was classified by a court judgment as being separate;
- Was received as a gift or inheritance; or
- You and your spouse agreed in writing to classify as separate property
Disputes over the distribution of property can frequently arise, especially regarding how certain property items are categorized. These types of disputes can require additional proof or evidence to determine exactly which spouse receives which items.
What Should We Do if We Have Children Involved a Divorce Filed in New Mexico?
Generally, the court will allow you and your spouse to work out a child custody arrangement on your own. However, if you cannot come to an agreement on how custody and visitation should be arranged, the court will step in and decide custody for you based on the best interests of the child.
Some of the factors used in determining the child’s best interest can include: the physical and mental health of the parents, any instances of abuse, and the child’s connection to their current home or school. If the child is 14 years old or older, the court may also consider take the child’s preferences with regard to custody.
The court may also allow you and your spouse to determine the amount of child support to be paid out, so long as the amount is just and proper in the eyes of the court. If the child support amount is not just and proper, then the court may get involved and adjust the amount.
Do I Need to Pay Alimony If I File for Divorce in New Mexico?
One spouse may be ordered to pay alimony, also known as spousal support, to the other spouse, depending on the circumstances. Generally, if the marriage lasted under 5 years, then neither spouse is entitled to alimony payments.
There may be exceptions if it is clear that they need alimony for a short while for rehabilitative/transitional purposes or they are entitled to reimbursement for the money they put into improving the other spouse’s earning potential.
If it is determined that one spouse should receive alimony, the court usually relies on a formula to calculate the amount. The formula consists of 28%-30% of the paying spouse’s gross income, minus 50% of the receiving spouse’s gross income.
Should I Hire a Divorce Lawyer in New Mexico?
Going through a divorce can be incredibly challenging. Thus, it is in your best interests to hire a New Mexico divorce lawyer to protect your interests and fight for your legal rights during the process. Your attorney can provide the legal advice and research needed to succeed on your claim.