If you're facing the end of your marriage because you or your spouse had an extramarital affair, you may be wondering whether the infidelity could affect what happens in your divorce case. When you live in New Mexico, you have the option of filing for divorce based on your spouse's adultery. But you should consider whether it would be worth basing your divorce on infidelity.
In New Mexico, as in all states, you need a legally accepted reason (or "ground") to get a divorce (also known as "dissolution of marriage"). The grounds for divorce in New Mexico include both fault and no-fault reasons. Adultery is one of the fault-based grounds. (N.M. Stat. § 40-4-1 (2022).)
However, most spouses choose to file for divorce based on the no-fault ground of "incompatibility." That's because a spouse who's being accused of wrongdoing in the divorce papers—like adultery—is more apt to fight that claim, along with other issues in the divorce. That leads to more stress on all concerned, including children. It also makes the divorce process cost more and take longer (more on that below).
If you file for divorce in New Mexico based on your spouse's adultery, you'll need to prove that claim. Some examples of proof you can offer include videos or photographs, witness testimony, emails, text messages about an affair, and social media posts.
An award of alimony (known as "spousal support") in a New Mexico divorce isn't automatic. A judge has to determine that the support is warranted under the particular circumstances of the case. There's a long list of factors judges must look at when they're deciding whether to award alimony. One spouse's fault or misconduct (including alimony) is not on the list. And New Mexico courts have made it clear that alimony decisions should be independent of either spouse's guilt in the end of the marriage. (N.M. Stat. § 40-4-7(E) (2022); Redman v. Redman, 64 N.M. 339 (Sup. Ct. 1958).)
So a spouse's adultery shouldn't affect spousal support in a New Mexico divorce.
New Mexico is one of a handful of "community property" states. The law presumes that any property either or both spouses acquire during the marriage belongs to both of them as community property. There are just a few exceptions, such as gifts and inheritances, which are considered one spouse's separate property. (N.M. Stat. §§ 40-3-8, 40-3-12 (2022).)
When couples are getting divorced, New Mexico courts have long held that judges must divide their community property equally. Although the division doesn't have to be mathematically exact, it should be as close to a 50-50 split as possible. (Irwin v. Irwin, 910 P.2d 342 (N.M. Ct. App. 1995).)
That means that one spouse's misconduct won't ordinarily affect how the judge divides property. In fact, in a New Mexico case that goes all the way back to 1919, the court held that a wife's adultery shouldn't affect the couple's property distribution. (Beals v. Ares, 25 N.M. 459 (1919).)
What if the cheating spouse squandered community funds on the affair, such as by providing a lover with lavish gifts or trips? As a rule, New Mexico judges don't like to get involved in figuring out how couples spent their money during the marriage. As one court said, "To do otherwise would be to invite litigation for accountings between spouses to determine who paid for the least significant thing." (Martinez v. Block, 115 N.M. 762 (1993).)
That's all well and good, but it would seem that depleting the asset pool under those circumstances isn't very fair to the innocent spouse. If you find yourself in this situation, you might want to consult with an experienced family law attorney to see whether you have any recourse.
Decisions about child custody in New Mexico, as in all states, must be based on what would be in the children's best interests. The law sets out a list of factors for judges to consider when deciding which parenting arrangements would be best for the children. The list does not include either parent's adultery or blame in ending the marriage (N.M. Stat. §§ 40-4-9(A), 40-4-9.1(B) (2022).)
However, the list of factors does include the child's interactions and relationship with both parents and anyone else who could significantly affect the child's best interests. So, for instance, the judge might consider whether it would be good for the child to spend with time with a parent who has withdrawn from the child's life because of a new relationship, or who continues to be in a relationship that involves domestic abuse.
Child support in New Mexico is calculated under a formula spelled out in the state's child support guidelines. The formula is based primarily on the income of the parents, the number of children being supported, the amount of time the children spend with each parent, and items like the cost of health insurance and work-related childcare. Typically, the more time a child stays with a parent, the less child support that parent has to pay, because they're already spending money directly on the child during their time together (sometimes referred to as "parenting time", "visitation", or "period of responsibility").
Because the support payments are meant for the child's needs—not as a reward or punishment for the parents' behavior—either parent's adultery shouldn't play a role in determining which of them will pay support or the amount of the payments. But as a practical matter, if the circumstances surrounding one parent's new relationship causes a judge to limit the time that parent spends with the child, because of concerns about the child's well-being, that parent may end up paying more child support than would be owed under a less-restricted custody arrangement.
No, adultery isn't a crime under New Mexico law.
Many people find it devastating to discover that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, you should know that it's not a good idea to try to use the divorce proceedings to punish your spouse. It's bound to increase the cost of divorce, and it will make the entire process more stressful, for you as well as your kids. It also means that you wouldn't be able to get an uncontested divorce in New Mexico, which is almost always a lot quicker, easier, and cheaper than a traditional contested divorce.
Despite these drawbacks, if you think that filing for divorce based on your spouse's adultery might benefit you, you should speak with a lawyer. A local, experienced family law attorney should be able to evaluate your case and explain whether it will be in your interest to file for a fault-based divorce. And if you ultimately decide to take that route, it's critical to have a lawyer prepare and present the kind of evidence you'll need to prove your claims. (Here are some tips on questions to ask before you hire a divorce lawyer.)
Similarly, if you're the one being accused of adultery in a fault-based divorce, you'll almost certainly need a lawyer to protect your interests and get a fair result—whether or not you actually had an extramarital affair.