New Mexico Divorce Law
Divorce and Legal Separation in New Mexico
Divorce and Legal Separation in New Mexico
New Mexico Divorce Basics
To file for divorce in New Mexico either party must reside in the state for the six months immediately preceding the date of the filing and have a domicile in the state.
For residency purposes, a domicile is defined as follows:
- The person is physically present in the state and has a place of residence in the state; and
- The person has a present intention, in good faith, to reside in the state permanently or indefinitely.
Persons serving in any military branch of the U.S. government who have been continuously stationed in any military base or installation in New Mexico for six months shall be deemed to have a domicile in the state and county where the base or installation is located.
In addition, any person who had resided continuously in New Mexico for at least six months immediately prior to his/her spouse’s entry into any military branch of the U.S. government who is stationed or whose spouse is stationed at any military base or installation outside of New Mexico and who has a present intention in good faith to return and to reside in New Mexico permanently or indefinitely, shall for these purposes be deemed to have a domicile of the state and county of his residence immediately prior to his/her spouse’s entry into the military branch.
The Petitioner (filing party) may file a Petition for Dissolution of Marriage in a district court of the county where either the Petitioner or the Respondent (non-filing party) resides.
Restoration of a spouse’s maiden name is not addressed specifically in New Mexico divorce statutes. However, the request may be included in the Petition for Dissolution and the judge may include a formal order in the divorce decree indicating the name change.
Legal Grounds for Divorce
- Incompatibility, which exists when because of discord or conflict of personalities, the legitimate ends of the marriage relationship are destroyed preventing any reasonable expectation of reconciliation;
- Cruel and inhuman treatment;
- Adultery; or
- Marriage between relatives within a prohibited degree;
- Marriage between or with minors under the age of 16 years;
- Marriage between or with minors who are at least 16 years of age but under the age of 18, unless the minor has not obtained the consent of his/her parent or guardian.
In the case of minors, no party to the marriage who is over the prohibited age shall be allowed to apply for or obtain a decree of the court declaring the marriage void. However, if the parties live together until they reach the legal age of consent, then the marriage shall be deemed legal and binding.
New Mexico statute defines separate property as follows:
- Property acquired by either spouse before marriage or after entry of a decree of dissolution of marriage;
- Property acquired after entry of a decree for legal separation, unless the decree provides otherwise;
- Property designated as separate property by a judgment or decree of any court having jurisdiction;
- Property acquired by either spouse by gift, bequest, devise or descent; and
- Property designated as separate property by a written agreement between the spouses, including a deed or other written agreement concerning property held by the spouses as joint tenants or tenants in common in which the property is designated as separate property.
- By either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in New Mexico at the time of its acquisition; or
- In exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property exchanged had been domiciled in this state at the time of its acquisition.
- Rehabilitative Spousal Support – provides the requesting spouse with education, training, work experience or other form of rehabilitation that increases his/her ability to earn income and become self-supporting;
- Transitional Spousal Support – supplements the income of the requesting spouse for a limited period of time, provided that the period shall be clearly stated in the court’s final order;
- Spousal Support for an Indefinite Duration; or
- Single Sum Payment - to be paid in one or more installments that specifies definite amounts, subject only to the death of the requesting spouse
not subject to any contingencies, including the death of the requesting spouse.
When making determinations concerning spousal support to be awarded the court shall consider the following criteria:
- The age and health of and the means of support of each spouse;
- The current and future earnings and the earning capacity of each spouse;
- The good-faith efforts of the spouses to maintain employment or to become self-supporting;
- The reasonable needs of each spouse;
- The standard of living of the spouses during the term of the marriage;
- The maintenance of medical insurance for the spouses;
- The appropriateness of life insurance, including its availability and cost, insuring the life of the person who is to pay support to secure the payments, with any life insurance proceeds paid on the death of the paying spouse to be in lieu of further support;
- The length of the marriage;
- The amount of the property awarded or confirmed to each spouse;
- The type and nature of each spouse’s assets; provided that potential proceeds from the sale of property by either spouse shall not be considered by the court, unless required by exceptional circumstances and the need to be fair to the parties;
- The type and nature of each spouse’s liabilities;
- Income produced by property owned by each spouse; and
- Agreements entered into by the spouses in contemplation of the dissolution of marriage or legal separation.
Child Custody and Support
In any case in which a judgment or decree will be entered awarding the custody of a minor, the district court, shall, if the minor is under the age of 14, determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including the following:
- The wishes of the child’s parent(s) regarding his/her custody;
- The wishes of the child regarding his/her custodian;
- The interaction and interrelationship of the child with his/her parents, siblings and any other person who may significantly affect the child’s best interest;
- The child’s adjustment to his home, school and community; and
- The mental and physical health of all individuals involved.
In any proceeding in which the custody of a child is at issue, the court shall not prefer one parent as a custodian solely because of gender.
The court presumes that joint custody is in the best interests of a child in an initial custody determination. In making its final determination regarding joint custody, in addition to the other factors reviewed regarding custody, the court shall also consider the following factors:
- Whether the child has established a close relationship with each parent;
- Whether each parent is capable of providing adequate care for the child throughout each period of responsibility, including arranging for the child’s care by others as needed;
- Whether each parent is willing to accept all responsibilities of parenting, including a willingness to accept care of the child at specified times and relinquish care to the other parent at specified times;
- Whether the child can best maintain and strengthen a relationship with both parents through predictable, frequent contact and whether the child’s development will profit from such involvement and influence from both parents;
- Whether each parent is able to allow the other to provide care without intrusion, that is, to respect the other’s parental rights and responsibilities and right to privacy;
- The suitability of a parenting plan for the implementation of joint custody, preferably, although not necessarily, on arrived at through parental agreement;
- Geographic distance between the parents’ residences;
- Willingness or ability of the parents to communicate, cooperate or agree on issues regarding the child’s needs; and
- Whether a judicial adjudication has been made in a prior or the present proceeding that either parent or other person seeking custody has engaged in one or more acts of domestic abuse against the child, a parent of the child or other household member.
- Statements regarding the child’s religion, education, child care, recreational activities and medical and dental care;
- Designation of specific decision-making responsibilities;
- Methods of communicating information about the child, transporting the child, exchanging care for the child and maintaining telephone and mail contact between parent and child;
- Procedures for future decision making, including procedures for dispute resolution; and
- Other statements regarding the welfare of the child or designed to clarify and facilitate parenting under joint custody arrangements.
The court may set apart a portion out of the property or income of the parents for the maintenance and education of their un-emancipated minor children as may seem just and proper, or for their children until their graduation from high school, if the children are emancipated only by age, are under 19 and are attending high school.
New Mexico uses the Income Shares Model in determining child support. The basic support calculation is based on the parents’ combined gross monthly income and the number of children for whom child support is being ordered. Adjustments may be made for the children’s health and dental insurance premiums and work-related child care.
The purposes of the child support guidelines are as follows:
- Establish as state policy an adequate standard of support for children, subject to the ability of the parents to pay;
- Make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; and
- To improve the efficiency of the court process by promoting settlements and giving courts and the parties guidance in establishing levels of awards.
- Make a specific determination and finding of the amount of support to be paid by a parent to provide properly for the care, maintenance and education of the minor children, considering the financial resources of the parent;
- Shall not consider present or future welfare financial assistance payments to or on behalf of the children of the children in making its determination; and
- For good cause, may order the parent liable for support of a minor child to assign to the person or public office entitled to receive the child support that portion of the parent’s periodic income or other periodic entitlement to money
In proceedings for the dissolution of marriage, separation or support between husband and wife, the court may make an allowance to either spouse of the other spouse's separate property as alimony and the decree making the allowance shall have the force and effect of vesting the title of the property so allowed in the recipient.
An action for legal separation may be filed when there has been a permanent physical separation of the spouses.
Links to State Resources
- Child Support Guidelines
Child Support Guidelines and relevant links provided by the New Mexico Human Services Department.
- New Mexico Revised Statutes, Chapter 40 – Domestic Affairs
Links to Articles 1 through 15 of the Domestic Affairs Chapter; laws regarding marriage, property rights, divorce, support, parental responsibility and custody, and more.
- NM State Judiciary Self-Representation Website
Divorce forms for uncontested divorces and child support worksheets.