Divorce – State FAQ – New Mexico
Residency requirements, venue and procedures
Q: How long must I have lived in New Mexico prior to filing for divorce in an New Mexico court?
A: At least one of the parties to the dissolution of marriage action must have been a resident of the State of New Mexico for at least six months immediately prior to the filing of the petition for divorce and must have a domicile in New Mexico.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Petitioner, while the other party to the divorce is referred to as the Respondent.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In New Mexico, proper venue for the divorce action is the District Court. The case should be filed in the jurisdiction in which the Respondent resides.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Petition for Dissolution of Marriage, while the title of the order granting the divorce is referred to as the Decree of Dissolution of Marriage.
Grounds for Divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in New Mexico. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in New Mexico?
A: A judgment of dissolution of marriage may be granted in the State of New Mexico on the following grounds:
1. Cruel and inhuman treatment;
3. Abandonment; and,
4. Incompatibility due to discord or conflict of personalities such that the legitimate ends of the marital relationship are destroyed preventing any reasonable expectation of reconciliation.
Q: On what basis does the court decide how marital property is divided?
A: New Mexico is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: Either party to a dissolution action in New Mexico may be ordered to pay alimony to the other spouse as the court deems just and proper, after consideration of the following factors:
1. The age, health and means of support of the parties;
2. The current and future earnings and earning capacities of the parties;
3. The good faith efforts of the parties to maintain employment or become self-supporting;
4. The reasonable needs of the parties;
5. The duration of the marriage;
6. The amount of property awarded to the respective parties;
7. The type and nature of the parties respective assets and liabilities;
8. Income produced by property owned by the parties; and,
9. Any marital agreements entered into by the parties.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: Can grandparents be granted visitation rights?
A: Yes. When considering a grandparent’s petition for visitation privileges with a child, the district court shall assess:
1. any factors relevant to the best interests of the child;
2. the prior interaction between the grandparent and the child;
3. the prior interaction between the grandparent and each parent of the child;
4. the present relationship between the grandparent and each parent of the child;
5. time-sharing or visitation arrangements that were in place prior to filing of the petition;
6. the effect the visitation with the grandparent will have on the child;
7. if the grandparent has any prior convictions for physical, emotional or sexual abuse or neglect; and,
8. if the grandparent has previously been a full-time caretaker for the child for a significant period.
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court will decide the issue of custody of minor children according to the best interests of the child. Factors the court will consider in determining the child’s best interests include:
1. The wishes of the child and the child’s parents as to custody arrangements;
2. The interaction and interrelationship of the child with his parents, siblings, and any other person who may significantly affect the child’s best interests;
3. The child’s adjustment to his home, school and community; and,
4. The mental and physical health of all parties.
A presumption exists that joint custody is in the child’s best interests.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: A rebuttable presumption exists that the amount of support established by the enacted child support guidelines in the correct amount of child support to be paid. Should the court deviate from the amount established in the guidelines, the judgment must contain a statement of the reasons for such deviation.