Filing for Divorce in New Mexico

Filing for Divorce in New Mexico

Divorce Law Cheat Sheet for the State of New Mexico

1. What are the residency requirements for filing for divorce in New Mexico?

You or your spouse must have lived in New Mexico for at least six months before filing and have a domicile there, which means you are physically present in the state, have a home there and intend to live there indefinitely. You must file in the county in which you or your spouse lives.

If you are a member of the military and have been stationed in New Mexico for at least six months, you may file for divorce there. And if you are a member of the military and lived in New Mexico for at least six months before being stationed elsewhere, you also may file for divorce in New Mexico — as long as you plan to return and live there after your service.

2. Does New Mexico have a waiting period?

No, there is no specified waiting period for a divorce in New Mexico.

3. Does the state have grounds for divorce?

You may file for a divorce in New Mexico on any of the following grounds:

  • Incompatibility —” conflict between you and your spouse has destroyed any reasonable hope of reconciliation.
  • Cruel and inhuman treatment.
  • Adultery —” your spouse had an affair.
  • Abandonment —” your spouse has left with no intention of returning.

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4. How does New Mexico determine the division of property?

You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you. New Mexico is a community property state, which means that all property that you and your spouse acquired during your marriage will be divided equally by the court.

Your separate property remains your own. This includes:

  • Property that you acquired before you were married.
  • Property that has been designated as separate property by a judgment or decree.
  • Property that you acquired by gift or inheritance.
  • Property designated as separate property in a written agreement between you and your spouse.

That being said, the court may award alimony out of your separate property, if alimony is requested and approved.

5. Does New Mexico require mediation before a divorce is granted?

Mediation is not a requirement in all cases, though the court may order it in your case if you and your spouse disagree over the custody of your child.

6. How does the state determine child custody?

Legal custody and physical custody are two different things. Legal custody outlines how involved each parent is in the major decisions of a child’s life””where a child goes to school, what faith he or she is raised in and other biggies.

Physical custody addresses where a child will live and with whom. Visitation is then negotiated based your physical custody arrangement. The court presumes that joint custody is in the best interest of your child. But to be sure, the court will consider these factors:

  • Whether your child has a close relationship with each of you.
  • Whether each of you is capable of providing adequate care for your child, including arranging child care as needed.
  • Whether each of you is willing to accept the responsibilities of parenting, including caring for your child at specific times and giving up care of your child at other times.
  • Whether your child can best maintain and strengthen his or her relationship with you and your spouse through predictable, frequent contact and whether your child will.
  • Benefit from that involvement and influence.
  • Whether each of you is able to let the other parent care for your child without stepping on the other’s parental rights and privacy.
  • The suitability of any parenting plan that you and your spouse came up with for joint custody.
  • The distance between you and your spouse’s homes.
  • You and your spouse’s willingness and ability to communicate and cooperate on issues regarding your child’s needs.
  • Whether there is any evidence of domestic abuse by you or your spouse.

In awarding joint custody, the court also has to approve your parenting plan. This plan has to address:

  • The time your child will spend with each of you.
  • Your child’s religion, education, child care, recreational activities and medical and dental care.
  • How specific decision-making responsibilities will be divided or shared between you and your spouse.
  • How you and your spouse will communicate information about your child, exchange care for your child from one house to the other and maintain telephone and mail.
  • Contact with your child.
  • Future decision-making, including ways to solve disputes.

If you and your spouse don’t agree to joint custody or you can’t agree on parts of your parenting plan, you each will have to submit individual parenting plans. The court may accept one or the other, or it may combine or change your plans as it sees fit for your child’s best interest. The court also is going to consider these factors as it determines just what would be best for your child:

  • You and your spouse’s wishes.
  • Your child’s wishes.
  • Your child’s interaction with each of you, his or her siblings and anyone else who will play a role in your child’s life.
  • Your child’s adjustment to his or her home, school and community.
  • The physical and mental health of everyone involved.

7. How does the state calculate child support?

Your basic child support amount is calculated using a set of state guidelines based on you and your spouse’s combined incomes. You’ll use the basic support schedule along with a worksheet specifically geared toward the type of physical custody you and your spouse have worked out: basic or shared. Basic visitation is a custody arrangement in which one of you has physical custody and the other has visitation less than 35 percent of the time.

Shared responsibility is a custody arrangement in which your child spends at least 35 percent of his or her time in each home, and you and your spouse significantly share parenting responsibilities and expenses.The cost of your child’s medical and dental insurance and work-related child care expenses are paid by each of you in proportion to your income, in addition to the basic obligation.

Child support may also include payment of the following expenses not included in the basic child support amount:

  • Extraordinary medical, dental and counseling expenses (uninsured expenses greater than $100 per child per year).
  • Extraordinary educational expenses.
  • Transportation and communication expenses for long-distance visitation or time-sharing.

8. How does the state determine and calculate alimony?

Alimony, also known as spousal support, is not a standard part of a divorce case, but you or your spouse may request it.In New Mexico, there are five ways in which the court may decide to award alimony:

  • Rehabilitative spousal support is designed to provide you with an education, training or work experience to improve your ability to support yourself.
  • Transitional spousal support supplements your income for a limited period of time.
  • You might be awarded spousal support for an indefinite period of time.
  • You might be awarded a single sum paid out in specific amounts that would end upon your death.
  • You might be awarded a single sum paid out in specific amounts that would continue even after your death.

If you decide to seek alimony, the court will consider:

  • You and your spouse’s ages and health and what support is available to each of you.
  • You and your spouse’s current and future earnings and earning potential.
  • You and your spouse’s efforts to keep a job or become self-supporting.
  • You and your spouse’s reasonable needs, considering the standard of living you shared while you were married and including medical and life insurance.
  • How long you were married.
  • The amount of property awarded to each of you in your divorce.
  • You and your spouse’s assets and debts.
  • Income from any property you or your spouse owns.
  • Any agreement between you and your spouse.

9. Is there a waiting period before remarriage in New Mexico?

No, you are free to remarry after the court delivers the final judgment ending your marriage.


New Mexico’s state statutes are online here.

For links to state forms you may use in your divorce, see Divorce Forms here.

Please note: Local and state laws change constantly, therefore this information is for educational purposes only. We do our best to keep state-specific information up-to-date, but please contact us to discuss your unique situation.

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