New Mexico Divorce Guide

New Mexico Divorce Guide

If you live in New Mexico and you’re contemplating divorce, you likely have a ton of questions swirling through your mind.

Although every divorce is unique, there are laws, processes, and procedures that every divorce case in the state must comply with.

Here are the answers to many of your questions.

What are the Grounds for Divorce in New Mexico?

As long as you meet the state’s residency requirements, New Mexico allows both no-fault and, to a lesser extent, fault-based divorces.

For a no-fault divorce to proceed, a couple must claim that they are incompatible and that this is the reason their marriage is failing.

Either spouse can petition the court for a dissolution of marriage based on this reason with the understanding that there is no reasonable expectation of reconciliation. You will need to be prepared to prove that you are incompatible by offering a sworn statement and possibly having additional witnesses testify on your behalf.

Fault-based divorces are also allowed, but only in limited circumstances. These include cruel and inhuman treatment, adultery, or abandonment. Each has specific requirements that you must prove before a divorce will be granted.

For example, with abandonment, you must be able to show that your spouse moved out of the family home, with no intention to return.

Fault-based divorces are generally more contentious but may offer you some advantages. If you can’t prove a case based on fault, then you can always revert back to a no-fault divorce instead.

What is a Legal Separation vs. a Divorce in New Mexico?

Legal Separation vs. a Divorce

A legal separation is a formal action that loosens the bonds of marriage but does not end a marriage. A legal separation requires formal court action and is not the same as a physical separation where one spouse simply moves out of the family home. Both spouses must sign the court document, which becomes legal and binding.

Couples sometimes choose a physical separation as a way to live physically and financially apart from each other. This can be an effective way for a couple to try and resolve their issues in a less combative environment.

Creating distance allows couples to think more about what their options are and provides a much needed time out to heal from the issues that cause the marriage to fracture in the first place.

Sometimes, couples also choose legal separation for religious reasons, because divorce may be a conflict depending on their spiritual beliefs.

Legal separations also let a spouse keep their spouse’s health insurance and can provide tax benefits that only married couples can enjoy.

Immigration status can also be affected. If a noncitizen gets a divorce, they may be deported. But with a legal separation, they can stay in the country even if they don’t continue to live with their spouse.

What is an Annulment vs. a Divorce in New Mexico?

An annulment is equivalent to if a marriage never happened. The marriage is declared void. There are specific reasons why marriage is prohibited and can, therefore, be annulled.

  • Marriage between two relatives within specific prohibitions
  • Marriage with one or both minors under 16 years old
  • Marriage with one or both minors who are at least 16 but under 18, unless the minor(s) have obtained parental consent.

The court must decree the marriage as void. The action to initiate this can be started by the minor, a friend, a parent or guardian of the minor, or by a district attorney.

If the minors do get married and live together until they reach the legal age of consent at 18, then the marriage will be considered legal and binding.

What are your Options for Getting a Divorce in New Mexico?

Options for Getting a Divorce

You have several options that you can pursue if you want a divorce in New Mexico. Each offers advantages and disadvantages that you’ll need to consider before making a final decision.

Do-It-Yourself divorce. This is known as an uncontested divorce. If you and your spouse can agree on all the issues in advance, you can file paperwork with the court stating this fact, and you will usually be granted a divorce in a short amount of time, the least amount of emotional stress, and the lowest possible costs. You may be able to go through the entire process without appearing in front of a judge, or appearing only briefly to answer a few questions.

Online divorce. This is similar to a DIY divorce, except that you rely a lot more on pre-printed forms and online services or attorneys to help you complete the required paperwork. The automated approach can save a lot of money, but you need to be careful about making costly mistakes if you go this route.

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Divorce mediation. You meet with a neutral third party who helps you work through the areas of disagreement you have, such as property division, child custody and visitation, and related issues. When you strike an agreement, you draw up a proposal and submit it to the court for approval. This is a quicker, cheaper, and less contentious route for many couples than going through a full-blown trial.

Collaborative divorce. This is an option for couples who still have a fair amount of cooperation and trust between them. Any disagreements are resolved respectfully and amicably using attorneys who are specially trained in collaborative law. This is less costly than other forms of divorce and leaves decisions with the couple, and not a judge. If collaboration fails, you can move forward with other types of divorce, but you will need to retain a different attorney if you do.

Litigation. Litigation is a traditional approach to divorce. You and your attorneys engage with your spouse and their attorneys in an attempt to negotiate a settlement before going to trial. About 95% of all litigated divorces end this way. If you can reach an agreement through a negotiated settlement or arbitration instead of a trial, then you can save some time and aggravation.

Negotiated settlement. Attorneys will work on various issues by going back and forth to try and find a settlement that is acceptable to both sides. There is more flexibility with this approach than with arbitration or a trial, and negotiations are also kept confidential.

Arbitration. Similar to mediation, but instead of a third-party mediator, you will work with a third party, often a private judge, who will listen to both sides and then issue a binding ruling. People often choose this when there is a fair amount of conflict, but they don’t want public exposure, cost, and attention that a full trial brings.

Trial. When two people have tried other ways of settling their marital affairs, and there is a high degree of conflicts and outstanding issues, a trial often results. These can be long, drawn-out, and expensive with a judge who will make rulings based on applicable state law. You may also not like the rulings that are decided by a judge, and you’ll have little recourse in most cases to modify the results.

This list merely scratches the surface of what you should know about the types of divorce. To learn more about all of these options, check out our article on the types of divorce.

What is the Process of Getting a Divorce in New Mexico?

Process of Getting a Divorce in New Mexico

Before you can file divorce paperwork, you must make sure you meet state residency requirements. That means either you or your spouse must have lived in New Mexico for at least the preceding six months.

The person who files for divorce is the petitioner, and the other spouse is the defendant.

To begin the process, the petitioner must file either a Petition for the Dissolution of Marriage Without Children or a Petition for Dissolution of Marriage With Children. You must use the latter form if you have any children who are under 19 who are still in high school.

After you complete the appropriate form and an information sheet, you need to submit the documents to your county’s judicial district court. Each district covers several counties, and you can find out which one you need to submit to by going here.

When you submit your paperwork, you’ll need to pay a filing fee. In some cases, if you qualify, you can ask for a fee waiver.

You must then legally notify the defendant by serving them with the paperwork. New Mexico has specific rules on how paperwork must be served. This can be done by having a county sheriff deliver the paperwork, any person over 18 deliver the paperwork, or you can send a copy to the defendant via U.S. certified mail, restricted delivery, and a return receipt requested.

After you have completed service, you’ll need to file proof with the court.

The defendant will have 30 days to respond to the petition after they have been served. In the response, the person can either agree with the terms (uncontested) or contest the terms of the divorce. The original copy of the response must be delivered to the court, and a copy must be sent to the petitioner.

Within 45 days after the petitioner files for divorce, both spouses must exchange financial disclosure information, listing all individual and joint assets and debts, income, and expenses.

After the exchange of information, the court may require mediation to work out any unresolved issues. If the issues can’t be resolved, then a judge may ultimately order a trial be held, at which time the judge will decide the issues after reviewing evidence and hearing witness testimony.

Can I File for Divorce in New Mexico Without an Attorney?

Without an Attorney

Yes. There is no legal requirement that you must use an attorney to file for divorce in New Mexico.

Generally, couples go this route when they’re seeking an uncontested divorce, and they are able to work out all of their issues by themselves.

But you need to be cautious. If a disagreement does crop up, don’t hesitate to seek legal advice immediately. You run the risk of costing yourself a lot of aggravation, anxiety, money, and time while winding up with an unfavorable settlement if you’re not careful.

Can I File for Divorce Online in New Mexico?

Divorce Online

To a certain degree, the answer is yes. Online divorce is relatively fast and easy and works best for uncontested divorces.

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You can partner with an online provider who will walk you through the steps of completing your paperwork. However, once the paperwork is complete, you still need to file it in person at the court.

Can I Mail Divorce Papers in New Mexico?

After you file documents with the court, one of the ways you can serve your spouse is by sending the paperwork via certified mail, restricted delivery, with a return receipt requested.

You will need the proof of delivery so that you can file that proof with the court to show that the defendant has been served legally.

Can I Refuse or Contest a Divorce in New Mexico?

You can’t refuse to be divorced in New Mexico if someone wants to divorce you. The best you can do is to delay the process by contesting various elements of the divorce, such as alimony, child support, and visitation, or a division of assets.

How Long Does a Divorce Take in New Mexico?

How Long

It depends on the type of divorce you choose.

If you can reach an agreement on all the issues beforehand and file for an uncontested divorce, you can get the courts to approve a final agreement in approximately 30 to 90 days, depending on court caseloads and judges’ availability.

If you go through mediation or other forms of negotiated divorce, the process can take considerably longer, perhaps 6 to 12 months or more. It will depend on your issues and how willing you and your spouse are in the process.

With litigation, expect the process to drag out for a considerable amount of time. A divorce case could take two years or more depending on the nature and the complexity of the issues you’re dealing with.

What is the Waiting Period to Get a Divorce in New Mexico?

At least one of the spouses must live in New Mexico for at least six months prior to filing for a divorce. Once a spouse files for divorce, the respondent has 30 days to file an answer to the divorce petition. However, if both couples agree, the 30-period can be waived.

Once the paperwork has been submitted to the court, it usually takes between 30 to 90 days for the divorce to be finalized. The actual time depends on court caseloads and the availability of judges to sign a final Decree of Dissolution.

Can I Expedite my Divorce in New Mexico?

The best way to expedite your divorce in New Mexico is if you and your spouse can agree on all issues before filing. With an uncontested divorce, your costs are less, and the waiting times are short compared to trying to resolve issues as part of the legal process.

If you do have disagreements, to shorten the process as much as possible, make sure you are timely when it comes to completing requests for documents, and that you appear at all court dates. Otherwise, you could set the process back by several months.

What is the Cost of a Divorce in New Mexico?

 Cost of a Divorce

Actual filing fees will run about $130 but can vary slightly from county to county, depending on where you file.

In some cases, if you can prove that you are financially challenged, you may be able to have the filing fee waived by petitioning the court for relief. To do this, you will file a form when you file your divorce petition with the court.

Do I Need an Attorney for a Divorce in New Mexico?

Do I Need an Attorney

No, an attorney is not mandatory. Many people go through a divorce in the state representing themselves. This works best in an uncontested divorce. However, if you have unresolved issues or your divorce is complicated, or you have a lot of assets to divide, you need to protect your interests with the help of an attorney.

An attorney may cost you a bit out-of-pocket, but you could cost yourself more by making unnecessary mistakes through self-representation.

How Do I Cancel a Divorce in New Mexico?

You can only stop or cancel a divorce in New Mexico if you are the petitioner. If you have completed paperwork but have not submitted any documents to the court, then you don’t need to do anything. If you have submitted paperwork and started legal action, then you can file a petition with the court to dismiss the case.

If you have gone through the legal process and your divorce has been finalized, then you have no recourse. If you want to reconcile with your ex, you will need to get married to each other again to declare your union.

What is a Contested Divorce?

A contested divorce means that you and your spouse do not agree on all the issues related to the dissolution of your marriage.

You will have to go through the added time, expense, and stress of working through things such as child custody, alimony, a division of assets and other related problem areas before a dissolution can be granted.

What is an Uncontested Divorce?

An uncontested divorce simply means that you and your spouse agree on all the issues related to divorce.

This is the easiest, quickest, cheapest, and least confrontational form of divorce. You can go through an uncontested divorce often without the help or cost of hiring a lawyer, and you may not need to appear in front of a judge, or if you do, only briefly.

What is a Divorce Decree in New Mexico?

 Divorce Decree

A divorce decree is the court’s final order granting you a divorce. This means you are no longer married and considered a single person, free to marry again if you so choose.

In New Mexico, a divorce decree is officially known as a Dissolution of Marriage. It is a legal document that must be followed. It will provide detailed rights and responsibilities of each party, including things such as child custody, visitation, alimony, a division of assets, and so forth.

If either spouse does not follow the requirements set forth in the document, legal actions can be taken to force them to comply with any deficiencies.

What is Proof of Divorce in New Mexico?

A proof of divorce document is much less detailed than a final Dissolution of Marriage document. It only states that two people had divorced, when and where the divorce took place. A proof of divorce certificate is often required when a person wants to get remarried.

Generally, the Vital Records and Health Services division of the New Mexico Department of Health maintains and issues New Mexico divorce records. However, in some cases, the clerk of the court in the county where the divorce was granted may have the record you need. Otherwise, you can contact the state office in person, by phone, through the mail or online.

When you make a request you’ll need to include:

  • Your name
  • Your spouse’s name
  • The county or city where you were granted the divorce
  • The month and year the divorce was granted
  • Your relationship with the person if requesting for someone else’s record the purpose you require the divorce records/certificate
  • A photocopy of your current government-issued photo I.D.

Vital Records & Statistics

Dept. of Health

1190 St. Francis Dr.

P.O. Box 26110

Santa Fe, NM 87502

You can also call the Department of Health at 505- 476-7900.

Can I Stop a Divorce in New Mexico?

No. If a person wants to divorce you, there is nothing you can do to stop them. You may delay the process by contesting aspects of the marriage settlement, but ultimately, your divorce will be finalized sooner or later.

Can I Reverse a Divorce in New Mexico?

If you are the petitioner in a divorce, and you want to stop a divorce in progress, perhaps because you have reconciled with your spouse, you can do so by filing a request to dismiss the divorce complaint.

However, once a final Dissolution of Marriage has been signed by the courts, the divorce is final.

What is a Bifurcated Divorce in New Mexico?

In some cases, a judge will allow a divorcing couple to split their divorce into two separate Marital Settlement Agreements. If a couple can decide on several of the issues, but not all of them, then the judge will allow specific issues to be settled while others are worked out at a later date.

Often, parents will have conflicts about child custody or visitation, or how assets should be divided. Rather than delay the entire divorce, the judge will allow a Bifurcated Final Decree to be issued. This means the couple is legally divorced, but the court retains jurisdiction over the couple to work out the remaining issues.

New Mexico judges are generally reluctant to grant bifurcated divorces because of judicial inefficiencies, and because there is less incentive to finalize a divorce, dragging out critical issues that can become more problematic over time.

What is a No-fault Divorce in New Mexico?

What is a No-fault Divorce 1

A no-fault divorce in New Mexico simply means that you and your spouse have irreconcilable differences that are permanent. You do not have to provide a further explanation or prove that any actions took place that would cause the divorce, other than you simply don’t want to be married anymore.

This simplifies the divorce process and is the route that a vast majority of people choose when filing.

How Does Adultery Affect Divorce in New Mexico?

One of the fault-based grounds for divorce in New Mexico is adultery. You must be able to prove adultery took place by submitting sufficient and admissible evidence to the court. This can include photos, phone records, witness testimony, private investigator reports, credit card receipts, and other types of similar information.

Adultery does not impact any alimony or child support amounts that are part of a divorce. It does not affect a division of assets or custody issues as well.

Changing Your Name

You will be presented either an option to restore your former name or request a court order for changing names when preparing your divorce forms.

The name change will be granted as part of your divorce. You may either receive a separate court order making your name change official, or else have your name change recorded on the final divorce decree. Either of these documents are accepted with all US agencies and organizations as evidence of your name change.

Just because you have a court order does not mean your name change has taken effect. You need to contact all your organizations to request your records are updated.

Start by updating your name with the Social Security Administration. Once complete you can go onto change names everywhere else.

It’s time-consuming to contact each company and figure out what to send where, so we recommend using an Easy Name Change kit to cut out the 10+ hours of research and paperwork that follows.

Read: 5 Things I Wish I Knew Before Changing my Last Name

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