Divorce Guide

Divorce Guide


New Mexico Divorce Laws



Residency Requirements for Divorce in New Mexico
One of the spouses must have been a resident of New Mexico for at least 6 months immediately preceding the filing for dissolution of marriage and have a home in New Mexico. The dissolution of marriage may be filed in any county where either spouse resides.
[New Mexico Statutes Annotated; Article 4, Section 40-4-5].

Legal Grounds for Divorce in New Mexico

  1. No Fault Divorce: Incompatibility because of discord and conflicts of personalities such that the legitimate ends of the marriage relationship have been destroyed preventing any reasonable expectation of reconciliation.
    [New Mexico Statutes Annotated; Article 4, Sections 40-4-1 and 40-4-2].
  2. General Divorce:
    1. Adultery
    2. Abandonment
    3. Cruel and inhuman treatment
    [New Mexico Statutes Annotated; Article 4, Section 40-4-1].

Legal Separation in New Mexico
If the spouses have permanently separated and do not live together or cohabit, either spouse may begin proceedings for property division, child custody and support, and maintenance, without asking for a dissolution of marriage. One of the spouses must have been a resident of New Mexico for at least 6 months immediately preceding the filing for legal separation and have a home in New Mexico.
[New Mexico Statutes Annotated; Article 4, Section 40-4-3].

Simplified/Special Divorce Procedures in New Mexico
Marital settlement agreements and contracts for separation are specifically authorized by law and must be in writing. Any marital settlement agreements should be recorded in the county where the spouses reside.
[New Mexico Statutes Annotated; Article 4, Sections 40-2-4 and 40-2-5].

Divorce Mediation or Counseling Requirements
There are provisions in New Mexico for the establishment of domestic relations mediation programs. If such programs have been established in the county where the dissolution of marriage is filed for, parents may request the use of such programs, or the court may order the parents to enter the program.
[New Mexico Statutes Annotated; Article 4, Section 40-12-5].

Divorce Property Distribution
New Mexico is a "community property" state. Each spouse retains his or her separate property acquired prior to the marriage, designated as separate property by a written agreement, and any gifts or inheritances. New Mexico uses a "quasi-community" property definition: All property, except separate property, that a spouse acquires outside of New Mexico which would have been community property if they had acquired it in New Mexico. "Quasi-community" property is treated like standard community property. The spouse's community property is to be divided equally between the spouses. Marital fault is not considered. There are no factors for consideration set out in the statute.
[New Mexico Statutes Annotated; Article 4, Sections 40-3-8 and 40-4-7].

Alimony and Spousal Support
Either spouse may be awarded a just and proper amount of maintenance, without regard to marital fault. The factors that the court will consider are:

  1. The duration of the marriage
  2. The spouse's current and future earning capacities
  3. The good faith efforts of the spouses to maintain employment or become self-supporting
  4. The needs and obligations of each spouse
  5. The age, health, and means of the spouses
  6. The amount of property that each spouse owns
  7. The spouses' standard of living during the marriage
  8. The maintenance of medical and life insurance during the marriage
  9. The assets and property of the spouses, including any income-producing property
  10. Each spouse's liabilities
  11. Any marital separation or settlement agreements
[New Mexico Statutes Annotated; Article 4, Section 40-4-7 and New Mexico Case Law].

Spouse's Name After Divorce
The court may order the restoration of a spouse's former name.
[New Mexico Statutes Annotated; Article 4, Section 40-8-1].

Child Custody After Divorce
Joint or sole child custody is to be determined according to the best interests of the child. There is a presumption that joint custody is in the best interests of the child, unless shown otherwise. The factors for consideration in all custody situations are:

  1. The wishes of the child
  2. The wishes of the parents
  3. The relationship of the child with parents, siblings, and other significant family members
  4. The child's adjustment to his or her home, school, and community
  5. The mental and physical health of all individuals involved
If a minor is 14 years old or older, the court may consider the wishes of the minor.

In addition, the factors that are considered in determining joint custody are as follows:

  1. The ability of the parents to cooperate and make decisions jointly
  2. The physical proximity of the parents to each other as this relates to the practical considerations of where the child will reside
  3. Whether an award of joint custody will promote more frequent or continuing contact between the child and each of the parents
  4. The love, affection, and other emotional ties existing between the parents and the child
  5. The capacity and disposition of the parents to provide the child with food, clothing, medical care, and other material needs
  6. Whether each parent is willing to accept all the responsibilities of parenting, including a willingness to accept or relinquish care at specified times
  7. Whether each parent is able to allow the other to provide care without intrusion
  8. The suitability of a parenting plan for the implementation of joint custody
  9. Whether any domestic abuse has occurred
[New Mexico Statutes Annotated; Article 4, Sections 40-4-9 and 40-4-9.1].

Child Support After Divorce
Either parent may be ordered to provide child support, based on a consideration of the financial resources of that parent. Any welfare benefits are not considered. Specific child support guidelines and worksheets are provided. Separate worksheets are provided for determining child support amounts for parents with visitation and for parents with shared responsibility. Shared responsibility or joint custody is defined as each parent having the child in their home at least 35% of the time during a year. Chid Support Guidelines are contained in New Mexico Statutes Annotated; Article 4, Section 40-4-11.1. These guidelines are presumed to be correct unless there is a showing that the amount of support would be unjust or inappropriate under the particular circumstances of a case, specifically:

  1. Any extraordinary uninsured medical, dental, or counseling expenses for the child of over $100.00 per year
  2. Any extraordinary educational expenses for the child
  3. Any transportation and communication expenses for long-distance visitation or time-sharing
A substantial hardship for either parent or the child may also justify an adjustment of the amount of the child support payment. The assignment and withholding of wages to secure the payment of child support payments may be ordered.
[New Mexico Statutes Annotated; Article 4, Sections 27-2-27, 40-4-7, 40-4-11, and 40-4-11.1].


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