Here’s what you need to know if you’re facing a spousal support action in New Mexico.
- Who is Entitled to Alimony in New Mexico?
- Types of Alimony in New Mexico
- What Factors Are Used to Determine Alimony?
- Modifying or Terminating Spousal Support in New Mexico
- Enforcing New Mexico Spousal Support Awards
- Spousal Support and Taxes
- New Mexico Alimony FAQs
Who is Entitled to Alimony in New Mexico?
Alimony and spousal support are used interchangeably in New Mexico. Either spouse can request alimony, and courts will make an initial determination based on whether one spouse has a demonstrated need and the other spouse can pay.
When both parties are self-supporting, the court may deny the request for alimony, even when there is a large discrepancy in income. New Mexico courts can handle significant differences in earnings by granting one spouse a greater portion of the marital property, such as bank accounts, retirement funds, home equity, real or personal property.
Types of Alimony in New Mexico
New Mexico divorce laws provide for several types of spousal support. These include:
Rehabilitative Spousal Support
This support is a form of temporary alimony that assists a divorced spouse with raising their income earning potential and becoming self-supporting through school, job training, or on-the-job programs like internships.
A rehabilitative support plan may be contingent upon the completion of a specific program. When the program is complete, benefits will end.
Transitional Spousal Support
Transitional alimony helps spouses transition to a post-marriage life, giving them time to find a new job while waiting for a house to sell or for someone moving to a new area.
Lump-Sum Spousal Support
A New Mexico family court may award a single sum of money to a spouse if the spouse can demonstrate the need for that exact amount. This lump sum payment may be delivered in one payment or through several installments. Many lump sum installment agreements terminate upon the death of the recipient. Others are put in place that order payments to continue even after a recipient spouse dies.
Indefinite Spousal Support
Some divorces will result in ongoing financial hardship if a spouse does not receive support from their former spouse. In these cases, the court may grant indefinite spousal support payments through the remainder of the recipient’s life or when they remarry. This may be due to advanced age, illness, or a disability. Indefinite spousal support arrangements are uncommon in New Mexico and typically only occur if the couple has been married for 20 or more years
Spouses can also create an alimony agreement, giving them more control over the process. The agreement will need to be approved by a judge, but if it is just and fair there are usually no problems getting a judge to sign off.
Finally, judges may grant alimony while a case is still going on, providing much needed support for a spouse until a divorce is finalized. This is known as pendente lite support, and it ends when the divorce is complete. It may or may not be replaced by one of the other forms of alimony noted above.
Read More: How to File for Divorce in New Mexico
What Factors Are Used to Determine Alimony?
The most important factors judges weigh in determining New Mexico alimony payments are the length of the marriage, the ability to pay, and the other spouse’s needs.
There is no set formula to determine alimony in New Mexico. However, the court considers several factors, including:
- The age and health and the means of support for each spouse.
- The current and future earnings and the earning capacity for each spouse.
- Good-faith efforts of each spouse to maintain employment or to become self-supporting
- The reasonable needs of each spouse including:
- The standard of living during the marriage;
- Maintaining medical insurance
- The appropriateness of life insurance, including its availability and cost, ensuring the life of the person paying support as a way to secure payments
- The duration of the marriage
- The amount of the property awarded or confirmed to each spouse.
- The type and nature of each spouse’s assets.
- The type and nature of each spouse’s liabilities.
- The income produced by property owned by each spouse.
- Agreements that are entered into by the spouses in contemplation of the dissolution of marriage or legal separation.
New Mexico courts are not allowed to consider the fault for the divorce.
There are no laws that specify exactly how long alimony will last. However, New Mexico has guidelines that help judges determine the length of alimony. Those guidelines suggest:
- 0 to 5 years of marriage: no alimony.
- 5 to 10 years of marriage: Rehabilitative or transitional alimony. A rehabilitative or transitional plan usually establishes the duration of spousal support payments.
- 10 to 20 years of marriage: 30% to 50% of the length of marriage. For a 20 year marriage, you might expect alimony to last for 6-10 years.
- Marriages over 20 years: Generally indefinite, and the court reserves jurisdiction over the issue unless the parties can agree to lump-sum, non-modifiable alimony.
New Mexico judges have broad discretion to determine the proper amount and length of alimony. However, state guidelines suggest that alimony is not appropriate in the following situations:
- The paying spouse’s income from all sources is less than $20,000 annually
- In marriages less than five years, absent exceptional circumstances
- In marriages of less than ten years where both parties are self-supporting with approximately equal career opportunities
- When the proposed recipient is cohabiting with someone other than the paying spouse;
- When the parties’ incomes consist of social security and pension income only and their incomes are approximately equal
- When an alimony award would be considered “double-dipping.” For example, when the same asset is considered in both the property distribution and support obligation.
Child support and child custody are not considered when determining New Mexico alimony. That means you could still be ordered to pay spousal support to your ex even if you already pay them child support or you have primary custody of the children.
Read More: New Mexico Divorce Guide
Modifying or Terminating Spousal Support in New Mexico
Unless the order for spousal support or the marital settlement agreement is “non-modifiable,” payments can be changed. “Lump sum,” “definite amount,” or “non-modifiable” are used in an order to demonstrate intent that the alimony is non-modifiable.
The requesting spouse can ask the court for a modification any time there has been a substantial change in circumstances to justify the modification. For example, expenses must have significantly changed since the original spousal support order, the paying spouse suffered a long-term illness or injury.
Alimony can end when either spouse dies, although some orders require a paying spouse to carry a life insurance policy to ensure payments after the fact. If a receiving spouse remarries or cohabitates, that can also end an order.
Enforcing New Mexico Spousal Support Awards
Alimony orders are considered court orders, and violating an order’s terms can quickly land you in hot water. Unpaid alimony is known as alimony arrears.
If a spouse stops paying or refuses to pay the agreed-upon support amount, the recipient can file a motion for enforcement or a motion for an order to show cause. If the enforcement motion is granted, the court may garnish the payor’s wages, award attorney’s fees to the recipient, or enforce the agreement through property liens, fines, or jail time. An order to show cause will trigger a hearing, at which time the paying spouse must appear in front of the judge and explain why they are behind on court-ordered payments.
The statute of limitations to collect on accrued and past due alimony payments in New Mexico is 14 years. Each payment is vested and accrues on the due date, so you have 14 years from when each alimony payment is due to file the appropriate motion to enforce.
Spousal Support and Taxes
Due to recent changes in Federal tax laws, the payer cannot deduct alimony or separate maintenance payments under a divorce or separation instrument executed after 2018. These payments are also not included as taxable income for recipients.
The same is true of alimony paid under a divorce or separation instrument executed before 2019 and modified after 2018 if the modification expressly states that the alimony isn’t deductible to the payor spouse or included in the income of the recipient spouse.
Taxpayers paying alimony under a divorce agreement executed before 2019 can deduct those payments from taxes when the following criteria are met:
- The recipient must be a spouse or former spouse
- There must be a written divorce or separation instrument
- A spouse must pay alimony with cash payments (such as checks and money orders)
- Maintenance does not continue after the recipient dies
- The parties must live apart, residing in different households
- The parties must file separate tax returns (they cannot file a joint return and claim the alimony deduction)
- The court-ordered payment of alimony cannot state that payments are not deductible
New Mexico Alimony FAQs
Is there a spousal support formula in New Mexico?
No, but the New Mexico Supreme Court issued Alimony Guidelines that recommend a set formula for settlement purposes. The courts will not base any award on this formula if it goes to court, but the parties are encouraged to consider this formula for settlement purposes.
The formula assesses both parties’ income following the dissolution of marriage.
The recommended formula is as follows:
- In cases with no child support agreement: “30% of Payor’s Gross Income minus 50% of Recipient’s Gross Income”
- In cases with a child support agreement: “28% of Payor’s Gross Income minus 58% of Recipient’s Gross Income”
How long do I need to be married to receive alimony?
There is no required time limit for an award of alimony. But typically, marriages that are less than five years in length usually do not involve alimony.
Are there any gender considerations in New Mexico?
No. Alimony payments can be made to either the husband or wife. New Mexico statute and case law do not create any preference or exclusions that are based on gender.
