New Mexico, unfortunately, has some of the more complicated family law rules and statutes around. Not to fear though, our brief guide will help educate you on the ins and outs of a New Mexico family law case so that you can make a smart decision whether to attempt your case on your own or hire an expert. New Mexico family law cases span multiple areas of the law from divorce, to child custody, to child support. The first step is understanding how the law will apply to the facts of your case, the next step probably should be speaking with an experienced New Mexico family law expert. The good news is that we can connect you – for free – to a local New Mexico family law attorney or professional!
New Mexico Divorce
In New Mexico, a divorce can be filed on either fault or no-fault grounds (view the statute at Chapter 40 Domestic Affairs Article 4). When filing for a fault divorce, the grounds the divorce petition can be filed based on grounds such as adultery, abandonment, or because of inhumane or cruel treatment. In order to file for no-fault divorce, you must allege that because of irreconcilable differences, you and your spouse are incompatible together and any chance at reconciliation is lost. No fault divorces generally are the most common type of divorce in New Mexico as they are cheaper and easier to finalize. Proving adultery or other grounds will require solid evidence, such as witnesses at trial, affidavits being drafted and signed, and depositions taken at attorneys’ offices over the months of discovery before trial.
New Mexico statute requires that prior to filing for divorce, certain residency requirements must be met. New Mexico statute states that either you or your spouse have been a New Mexico resident for at least 6-months prior to filing for the divorce. This will need to be alleged and proven in the initial filing of the divorce action. Certain exceptions exist for members of the armed forces that are New Mexico residents but are stationed in another state or country.
Once you have had the sheriff or a special process server effectuate service on your spouse (or should your spouse waive service of process), the court imposes a mandatory waiting period of 30-days before it will enter a final divorce decree. This is mandatory, even if spouses have come to an agreement and wish to proceed with an uncontested divorce.
Property Division Rules
Property division in a New Mexico divorce is confusing for many people because New Mexico, along with most other southwestern states, is what is known as a community property state. This means that any income, property, or even debt (unfortunately) that is acquired during the marriage will be split evenly (a 50/50 basis) between the spouses. It also means that property you personally had prior to the marriage or inherited will remain sole and separate property. Keep in mind that because New Mexico is a “no-fault” divorce state, anything that one spouse may have done (cheating, abandonment, etc.), has zero effect on how the property is divided between the two spouses.
Alimony – Spousal Maintenance
Alimony (also known as spousal maintenance) is the other main property dispute during a New Mexico divorce that gets individuals extremely emotional. Alimony is ordered on a temporary basis in some divorces to help a lower income earning spouse maintain some semblance of the same lifestyle they had during the marriage. This may be for a stay at home parent or a spouse with significantly less earning capacity or a disabled spouse. Factors that go into determining if alimony is appropriate include: age of the spouses, earning capacity of each spouse, educational level of each spouse, work history, disability, health, and many other factors.
New Mexico Child Support
New Mexico child support laws require that the income of both spouses be considered when determining child support awards. Once a child support award has been entered, the payments required will continue until the child reaches the age of 19, or completes high school, whichever occurs first. However, additional support as it relates to the child’s education can be agreed upon by both spouses and the signed off on by the court. The court also has the discretion to require one or both of the parents to pay for a child’s health insurance as well as additional medical expenses that insurance cannot cover. View New Mexico’s child support worksheet and find out what an estimate payment looks like.
New Mexico Child Custody
New Mexico child custody disputes can become difficult, complicated and draining if you don’t know how to approach it the right way – they are the most difficult aspect of New Mexico family law cases. And the first step to doing this is understanding some of the basics of New Mexico child custody cases. New Mexico, like almost every other state, follows the “best interest of the child” standard when making a custody decision. The judge will examine numerous factors such as the parents’ wants, the child’s relationship with each parent and their extended families, their adjustment to home, school and the community they reside in, and the mental and physical health of both parents. Of utmost importance here is also whether there has been any domestic violence between the two spouses or the children.
Child custody cases can take on two different forms: one during the divorce process, the other for parents that were unmarried (known as paternity). Initially, New Mexico judges attempt to view the facts with an open mind to allowing joint custody with lots of parenting time for both parents. Parties can be granted joint custody or sole custody depending on the circumstances. In either case, most courts try to make sure that both parents have significant visitation time with the children. And not to fear – should a “material change in circumstances” arise, a child custody order can be modified and changed.
New Mexico Father’s Rights
Fathers face a unique set of issues when they attempt to exert their rights in New Mexico family law court. Even though New Mexico statute explicitly states that the sex of a parent should have no bearing on who gets custody or visitation of a child, the courts still have a mom leaning bias that generally awards custody to mother’s more often than fathers. This is not necessarily because mothers are better caregivers than fathers. Father’s rights attorneys and advocates have fought to make sure dad’s get the same rights as moms. To this end, it is necessary for a father to assert his rights as a parent and to avoid the many pitfalls than can ruin his chances of obtaining his father’s rights.
Your Move Next – What Will It Be?
Now that you have a basic idea what you are up against, it is time to be proactive and make the right decision for you and your family. Gaining further knowledge and preparing for whatever case you may enter is essential. Speaking with a local New Mexico family law expert is probably a great idea too. We can connect you – at no charge – to a local expert than can let you know what level of help you need. Don’t waste any more time though, get the family law rights you deserve.
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