What is the difference between a divorce and a legal separation?
In New Mexico, a couple goes through the same process and must address the same issues in a legal separation as they do in a divorce. The only difference is that after a legal separation, neither party is free to get married to someone else. A legal separation is not a "partial" divorce or a half-way step toward divorce.
How long do I have to live in New Mexico to file for a legal separation or a divorce?
At least one party must live in New Mexico for six months before filing for divorce. That six-month prerequisite does not apply to filing for legal separation. It is possible to move to New Mexico, start a legal separation, and after six months convert the case to a divorce. However, if children are involved, the children must live in New Mexico for at least six months before the court has jurisdiction to decide custody, timesharing, and child support.
How long does it take to get divorced?
The law provides the other side (called a "Respondent") 30 days to file an Answer to the divorce petition (called a "Petition for Dissolution of Marriage"). The parties can agree to waive the 30-day period. There is no waiting period after the Final Decree is filed to make it effective; thus, it is possible to be divorced in one day. With that said, couples who choose to fight over every issue, who refuse to seriously discuss settlement, and who require a full-flown trial on the merits can successfully drag out a divorce for years, and rack up thousands upon thousands of dollars in attorneys' fees, expert witness fees, etc.
Can I get any money to live on while the divorce or legal separation is pending?
Yes. New Mexico has something called "interim division of income and allocation of expenses" which is a temporary splitting of income, after certain fixed expenses are paid. Basically, the parties disclose how much money they are actually earning (even if it's zero), and which court-approved fixed monthly bills they are paying. You subtract the bills paid from the incoming money to get the combined net income. The parent who primarily has the children gets an additional percentage of income. Interim division does not happen automatically. The parties have to produce documentation of income and bills. If one party refuses to cooperate, a hearing can be held to decide the issue.
Do we have to appear in Court?
No. If the parties sign the Marital Settlement Agreement and the Final Decree, the papers can be submitted to the judge for review and signing, and filed in the clerk's office without the parties ever seeing the inside of the courthouse. In fact, the majority of divorcing couples never go to court.
What if my spouse opposes the divorce?
New Mexico is a "no fault" state which means the other spouse cannot prevent the divorce from eventually going through. There are still three "fault" grounds on the statute books (for adultery, abandonment, and cruel and inhuman treatment), but I have never seen a divorce granted on those grounds. The standard basis for divorce is "incompatibility" with no reasonable likelihood of reconciliation.
What issues need to be addressed in a divorce?
Four broad categories need to be addressed: (1) property characterization (community vs. separate) and division; (2) debt characterization and allocation; (3) alimony; and (4) children's issues (custody, timesharing, and child support).
What property and debts get divided?
New Mexico is a community property state. That means that each spouse is entitled to receive one-half of all property acquired during the marriage, including retirement benefits. It also means that each spouse is responsible for taking on one-half of all debt, including debts that he or she didn't know about. Rarely does each and every piece of community property get split down the middle or each debt get split 50-50. The Court is required to make an "equitable" or "fair" division of the property and debts. Usually, the value of all the property is added up as are all the debts. The debts are subtracted from the assets, and whatever is left over gets divided.
What property and debts don't get divided?
Separate property continues to belong to the person who owned it. Separate property is essentially any property you owned before the marriage, received as a gift specifically to you during the marriage, and property you inherited during the marriage. The proceeds from separate property also remain separate. For example, if you inherited a house from your parents while you were married and rented it out, then the rent proceeds remain separate. Similarly, debts you owed before marriage continue to be separate debts. Problems arise when separate property or debts get "commingled" or mixed up with community debts, such as when you owned a home before marriage that both of you live in now and use your salaries to pay the mortgage and taxes after marriage.
What legal papers are usually involved in getting a divorce?
More complicated cases have more legal documents, called "pleadings", but a basic divorce involves preparing the following:
- Petition for Dissolution of Marriage
- Summons &Return of Service (to have the petition served on the Respondent)
- Temporary Domestic Order
- Answer to Petition for Dissolution of Marriage (and possibly Counter-Petition)
- Marriage Settlement Agreement (deals with property, debts and alimony)
- Parenting Plan (if there are children involved)
- Order to Withhold Income (for child support and/or alimony)
- Qualified Domestic Relations Order (to divide retirement benefits)
- Final Decree of Dissolution of Marriage (finalizes the divorce)
Do we really need a lawyer?
Many people represent themselves in divorce cases. The law does not require you to have an attorney. The courthouses have some basic forms available. In Bernalillo County (Albuquerque), there is a service for low-income people called "The Courthouse Booth" that is staffed by attorneys donating their time and expertise to help people through the process. If you have not been married very long, do not have children, do not own a home or have retirement benefits, and your assets and debts are very limited, then it is possible to do the divorce yourself with little or no problems down the road. If there are children involved, or significant assets and debts, then I do not recommend trying to represent yourself in the divorce.
Can we use just one lawyer?
There is a conflict of interest between a husband and wife in the process of divorce. Lawyers are not allowed to represent two people with such a conflict of interest, unless both parties waive, in writing, such conflict of interest. As a practical matter, one lawyer cannot represent both sides; however, it is quite common for only one spouse to have a lawyer and the other spouse to represent himself or herself. In that case, the lawyer negotiates with the other spouse. Sometimes the parties reach a settlement agreement themselves and simply ask the lawyer to "draw up the papers".
