How to File For Divorce In New Mexico
Table of Contents
- REQUIREMENTS FOR A NM DIVORCE
- GROUNDS FOR DIVORCE
- HELPFUL TIPS!
- STEP 1: STARTING YOUR NM DIVORCE
- STEP 2: NOTIFYING YOUR SPOUSE
- STEP 3: CONTESTED OR UNCONTESTED?
- STEP 4: DIY OR GET A LAWYER?
- STEP 5: THE BIG ISSUES
- STEP 6: FINALIZING YOUR NEW MEXICO DIVORCE
REQUIREMENTS FOR A NM DIVORCE
If you want to file for divorce in New Mexico, either your spouse or you should have resided in the state for 6 months before the date of filing and must have a domicile in the state. Domicile is defined as:
- The individual is present in the state physically and also has his/her residence in the state.
- The individual has the intention in good faith to live in the state permanently/ indefinitely.
There’s no mandatory cooling period in New Mexico and once the documents have been filed, it takes around 30-90 days for the divorce to be finalized.
GROUNDS FOR DIVORCE
New Mexico has “no-fault” grounds for the dissolution of marriage and you can also file for divorce under “fault” grounds.
For a dissolution in New Mexico on basis of “no-fault” grounds, you must state in the Dissolution of Marriage Petition that your spouse and you are incompatible.
The 3 “fault-based” grounds for dissolution of marriage in New Mexico are:
- Inhuman and cruel treatment
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- Fees: You need to pay a filing fee of around $130 to file your divorce papers in the court in New Hampshire and the filing fee may vary from one county to another. However, if you can’t afford the filing fee, you must fill out a fee waiver request form.
- Lawyer Costs: If you are planning to employ a lawyer to assist you with your divorce, then the lawyer’s fees is around $8,400 and the cost of the divorce can range between $3,500 and $23,000.
- State Website: For more information about divorce in New Mexico and an interactive tool for the calculation of child support, you can go to nmcourts.com.
- Need Help?: Have a question about your specific situation or need more clarification on the process. Use JustAnswer.com to chat online with a family law lawyer.
STARTING YOUR NM DIVORCE
Preparing the Documents
To start a dissolution process in New Mexico, you must complete the Petition for Dissolution of Marriage With/Without Children depending on your circumstance.
We have listed some of the important documents, although you may need to fill additional forms, depending on your situation.
Documents Needed for Filing for Divorce
- The Petition for Dissolution of Marriage: This is filled by the petitioner and should be filled according to the situation whether with/without children, child support (if applicable), provisions for community property and debt, restoration of the former name of the wife and the “Prayer of Relief”.
- The Decree of Dissolution: Identifies both spouses and their children and terminates the marriage. It also has other forms to restore the wife’s former name, child custody and support, medical insurance, wage assignment provisions and income tax deduction details, provisions for community property and debt.
- Appearance, Waiver and Consent: This form states that the respondent accepts the Dissolution Petition, he/she enters an appearance, he/she waives the service of the Summons and the 30-period to file a response and also waives the protection that he/she may enjoy as per the Civil Relief Act for service members.
- Summons: This informs the respondent spouse that a petition for dissolution has been filed and gives him/her 30 days to file his/her response.
- Notice of Summons and Receipt of Summons: This form should be signed by the respondent spouse within 30 days of mailing and not doing so can result in a default judgment against the respondent.
- Affidavit of Service by Mail: This form is filled if the respondent has been served by mail.
- Return of Service of Process: This verifies that the respondent has been served properly and is used when a 3rd party serves the papers.
- Monthly Child Support Worksheet A: Must be filled if the petitioner is the sole custodian of the minor children.
- Monthly Child Support Worksheet B: Must be filled by both petitioner and respondent in the case of shared custody.
- The Joint Custody Parenting Plan: Used when both spouses share the joint custody of the children and have the details of both parents and the children.
- Wife’s Consent to Restore Former Name: Requests that the former name of the wife be restored.
- Waiver of Waiting Period: Requests the 30-day waiting period to be waived.
- Entry of Default: Records a Default Judgment against the respondent.
Filing Your Forms
You must complete the divorce petition and the information sheet and file these documents at the judicial district court of your county. There are 13 judicial district courts in New Mexico and each court covers many counties. You can find the links of the judicial district court websites on the website of the state judicial branch. You must file your forms at the appropriate court with the filing fee which can be paid via money order or in cash or if you cannot afford the fee, you can request for a fee waiver.
NOTIFYING YOUR SPOUSE
When you file the divorce petition with the court, the court clerk will stamp the copies of the documents, which you must serve on your spouse. You can serve your spouse using any of the methods mentioned below:
- You can use any person who is 18 years or older to serve the papers.
- You can request the county sheriff where your spouse lives or works to serve the papers. The sheriff will charge a fee for the service.
- You can send the petition via US-certified mail (restricted delivery with return receipt requested).
Once you have served your spouse by using any of the above methods, you must file the proof of service with the court. Once the respondent spouse has been served, he/she must complete the written response to the divorce petition and the appearance form within a period of 30 days of the service of the divorce petition. The respondent can agree or disagree with what is stated in the petition. The original response must be filed with the court and a copy of it must be sent to the petitioner.
CONTESTED OR UNCONTESTED?
Uncontested Divorce (High Costs)
A contested divorce is when both spouses meet in the court to resolve some of the main issues pertaining to the divorce. This will involve both parties hiring a lawyer to defend their separate interests.
In a contested divorce, usually, the judge will hear both sides of the argument, usually presented by the attorneys of each spouse, who will also defend their interests and then decide the disputed issues. A contested divorce is time consuming, stressful and quite an expensive process.
Uncontested Divorce (Low Costs)
If you and your spouse can agree on the divorce and are open to working together, this is the best route to move forward with. You can have an uncontested divorce with or without the assistance of an attorney. However, in an uncontested divorce, both your spouse and you must be responsible and be prepared to discuss all the issues pertaining to the divorce with your spouse.
It is assumed that in an uncontested divorce, both spouses can arrive at an agreement regarding the various issues of the divorce such as property and debt division, child custody and support, alimony, etc., draft the agreement, sign it and submit it to the court. This can hasten the divorce process significantly.
DIY OR GET A LAWYER?
DIY Divorce Papers (Slower & Least Costly)
A DIY divorce is when you go through the divorce process on your own without the assistance of a divorce lawyer. This is a suitable option where the cases are very simple (uncontested).
You can get the proper forms that you need from the appropriate court or you can download it from the New Mexico Judicial Branch website and also use the ‘Self-Help Guide’ available on the website mentioned in the helpful section above.
Some judicial courts of New Mexico conduct a free seminar on representing yourself. For instance, the seminar is held by the 1st judicial court on Saturday morning for a fee and it provides court-approved forms and informational packets with them.
The court also offers settlement facilitation services that are court-sponsored and these provide self-represented couples the chance to meet a neutral 3rd party, who is usually an attorney or trained mediator, who can assist them to arrive at an agreement on the various issues pertaining to the divorce.
Online Divorce Services (Fastest & Inexpensive)
The fastest way to go about filing a divorce is to use an online divorce service. These providers make the process very easy and fast by having you answer questions, and based on your responses, will fill out your divorce forms for you. When you finish answering the questions, you will need to sign and file them with your local court.
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Attorney Divorce Trial (Longer & Expensive)
In case there are any issues about the divorce which your spouse and you do not have an agreement about, and there is no scope of coming to an agreement over the disputed issues, then your case will go to trial and can go on for several months or years.
At the trial, the judge will hear both sides of the case presented by the lawyers or both parties. And, after listening to the argument presented by both sides and going through all the testimonies, evidence and witnesses, the judge will then decide all the disputed issues.
THE BIG ISSUES
Divorce involves the division of the property and the debts between the divorcing couple. Usually, each spouse can retain their respective separate property that is the property:
- That was acquired by either spouse before their marriage.
- That was acquired after the decree for the property division, child custody, child support and alimony was entered.
- Specified as separate property by the court by a decree or judgment.
- Acquired by inheritance or as a gift.
- Specified in the form of a written agreement between both the spouses as being separate property.
Any other property is treated as marital or community property, which is divided equally between both spouses in case there is no agreement, without considering fault. New Mexico does not have any statutory factors that allows the community property to be divided according to the judge’s discretion.
Alimony / Spousal Support
Alimony is known as spousal support in New Mexico. Spousal support can be one of the following:
- Rehabilitative Spousal Support: This is for the training, education or any rehabilitation to increase the capability of the spouse seeking support to become self-supporting.
- Transitional Spousal Support: This supplements the income of the receiving spouse for a restricted time period.
- Spousal support for an unspecified period of time.
If there is no agreement between both the spouses, the spousal support award, the duration and the amount is decided by the judge after considering a few factors such as:
- Length of the marriage.
- Age, methods of support and health of each spouse.
- Present and future earnings of each spouse and their capacity of earning.
- The efforts of each spouse to be able to support themselves or maintain employment.
- The reasonable needs, standard of living maintained when the couple was married, medical insurance, etc. of each spouse.
- Property that has been awarded to each spouse.
- Assets and liabilities of each spouse.
- Liabilities of each spouse.
- The income from property that is owned by each spouse.
- Any agreements which has been entered by either spouse in contemplation of the divorce.
Child Custody Laws
If your spouse and you have minor children, then there will be the determination of custody of the children. The New Mexico laws presume that joint custody of the child is in his/her best interests. Child custody is essentially to decide how the time of the child will be distributed between both parents and the way the decisions pertaining to the child will be made.
If your spouse and you have an agreement regarding the custody of the child, the court will accept this, unless the court feels that the arrangements are not in the best interests of the child. If you are unable to reach an agreement, the court may ask you to attend mediation. Each spouse may also be asked to submit a parenting plan by the court. The court will then make decisions regarding child custody after considering various factors:
- Child’s wishes, especially if the child is 14 years or older.
- Wishes of both parents.
- Relationship of the child with his/her parents, siblings and any other important person.
- Adjustment of the child to his/her community, school and home.
- Physical and mental health of the individuals involved.
- The capability of each parent in providing suitable care for the child and also arranging the child’s care by others when needed.
- The willingness of each parent to accept the parenting responsibilities and child’s care at the stipulated times and relinquishing the care of the child to the other spouse at the stipulated times.
- If the child is able to maintain his/her relationship with both parents.
- If each of the parents is able to let the other provide child care without intruding.
- The distance between the residences of both parents.
- Suitability of the parenting plan in the case of joint custody.
- Ability or willingness of both parents to cooperate, communicate and agree on the issues pertaining to the needs of the child.
- Any judgment that either parent is involved in with regards to domestic violence.
- Any other factor that may be relevant.
The decision regarding child support must be made. The child support is decided after considering the child’s needs and the ability of each parent to meet the needs.
This is calculated by referring to the Child Support Guidelines of New Mexico.
FINALIZING YOUR NEW MEXICO DIVORCE
If your spouse and you have children, then typically, there is a divorce hearing needed in New Mexico. If there are children involved, then generally, there is a hearing of 15 minutes that allows the court to ensure that both the parents understand the custody, support and visitation parameters that have been ordered as part of the divorce.
If you don’t have children, then the procedure is more streamlined and since your spouse and you have an agreement on all the issues, the court does not have to decide anything.
In New Mexico, there is no “cooling-off period” and so there is no need for your wait for months before the final hearing is scheduled. When the respondent answers the Petition for Dissolution, the court will begin considering your case. And, if the respondent spouse responds immediately, then the divorce can be finalized very quickly in New Mexico.
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