This article explains the divorce process in New Mexico. The information in this article is applicable to both opposite-sex and same-sex couples, as a New Mexico court recently ruled that a same-sex couple who married in another state can use the New Mexico courts for a divorce.
Grounds for Divorce
In New Mexico, either spouse may file for divorce based on irreconcilable differences, meaning you and your spouse are incompatible and there is no chance for reconciliation (no-fault divorce). You may also file for divorce based on cruel and inhuman treatment, adultery, or abandonment by your spouse (fault divorce).
Residency Requirement and Waiting Period
You or your spouse must live in New Mexico for at least six months before you may file for divorce. You may file in the county where either spouse lives. There is a 30 day waiting period after your spouse has been served with the petition before a decree of divorce may become final.
Property Division in New Mexico
New Mexico is a community property state. This means that any property or debts acquired during your marriage will be split equally between both spouses. If you do not want the court to divide your property, you and your spouse may decide together how to divide your property. Marital property includes all real property, personal possessions, and income acquire during the marriage. It does not include separate property obtained before marriage, after entry of a divorce decree, or by gift or inheritance.
New Mexico courts may grant temporary or permanent spousal support to a spouse who has an actual need for support, as long as the other spouse has the ability to pay. The court will consider all relevant factors determine the amount of spousal support, including the standard of living established during the marriage, each spouse's current and future earning capacity and efforts to become self-supporting, and the duration of the marriage. You may request a modification of spousal if you or your spouse's financial situation changes significantly. Spousal support ends when either spouse dies or if the judge orders otherwise.
New Mexico courts use state guidelines based on both parents' incomes to determine what amount of child support is appropriate. Child support payments continue until the child completes high school or turns 19; parents may sign a written agreement to continue support for the child's college education. The court may also order one parent to pay for the child's health insurance or both parents to share the cost of medical expenses not covered by insurance. You can estimate your child support obligation here. To modify a child support order, a parent must show a substantial change in circumstances such as a significant change in income. Child support orders in New Mexico are enforced by the Child Support Enforcement Division.
New Mexico courts determine child custody based on the best interest of the child without regard to the sex of the parent. The presumption is that shared custody between both parents is best, but the court will evaluate several factors before making a custody order. Factors include the parents' wishes, the child's relationship and interaction with each parent, the parents' and child's physical and mental health, and the child's adjustment to home, school, and community. To modify a custody order, parents must show that there has been a substantial change in circumstances and that it would be in the child's best interest to change the custody plan.
N.M. Stat. Ann. § 40-4-1 - grounds
N.M. Stat. Ann. § 40-4-4 and 40-4-5 - residency
N.M. Stat. Ann. § 40-3-1 et seq. - property division
N.M. Stat. Ann. § 40-4-7 - spousal support
N.M. Stat. Ann. § 40-4-7 and 40-4-11.1 - child support
N.M. Stat. Ann. § 40-4-9, 40-4-9.1 - custody