Area of Law:
To begin a divorce proceeding in New Mexico, a spouse files a divorce petition with the local court’s clerk. File the complaint at the court located in the county where you or your spouse reside. The spouse filing the complaint is the petitioner and the other spouse is the respondent. In addition, after the petitioner files the divorce petition, the petitioner must serve a copy of the petition on the respondent. Family law forms are available at the New Mexico State Judiciary Self Representation’s website http://www.nmcourts.gov/cgi/prose_lib/.
New Mexico recognizes four statutory grounds for dissolution of marriage. These include adultery, abandonment, cruel and inhuman treatment and incompatibility. However, the majority of petitioners cite incompatibility as the reason for the divorce. Spouses may cite incompatibility if the marriage relationship is destroyed due to a conflict of personalities between the two spouses and there is no chance of reconciliation.
When you file the divorce petition, you will be required to pay a filing fee. The filing fee for a divorce petition varies in New Mexico depending on where you file the petition, but the fee is generally around $140. However, your local court clerk will be able to give you an accurate filing fee for your county. In addition, if you cannot afford to pay the filing fee, the court may waive the fee if you can show financial hardship.
The length of time it will take for the divorce to become final will vary according to several factors. For example, an uncontested divorce will become final more quickly than a contested divorce. An uncontested divorce means that both spouses have agreed to all material issues including child support and the division of marital assets. If there are several issues that spouses disagree upon, expect a divorce to take six months or longer before becoming final.
One of the issues that may arise during a New Mexico divorce proceeding is the division of marital assets. Marital assets are property jointly held by both spouses and acquired during the marriage. However, marital property does not include separate property. Separate property is property belonging to one spouse, owned either prior to marriage or acquired by gift or bequest during the marriage. New Mexico is a community property state. Therefore, the court presumes that each spouse has a one-half interest in all property acquired during the marriage. The court will divide all community property evenly between both spouses. In addition, the court will also distribute the community’s debts as well.
If you and your spouse can agree about the division of the marital property, consider drafting a marital settlement agreement. In New Mexico, the court will approve a marital settlement agreement if it appears to be fair to both parties. However, agreeing on settlement terms is often the hardest part of a divorce proceeding. Therefore, the court may recommend both spouses attend mediation to try to resolve any contested issues.
For additional information regarding how to file for divorce in New Mexico, visit the New Mexico Bar Association's website http://www.nmbar.org/Public/publicpubs/divorceandseparation.html.