Adultery in New Mexico: Does Cheating Affect Alimony?

If you’re getting divorced in New Mexico and you or your spouse has cheated, you’ll need to know how the adultery will affect the judge’s decisions about your case, including alimony, child custody, and child support.

By , Attorney

If you have decided to pursue a divorce based on adultery in your marriage, it's helpful to know if the adultery will affect the divorce proceeding in general, and specifically, whether it might impact any particular aspect of the divorce, such as alimony.

This article explains the basics of adultery and alimony in New Mexico.

Adultery as a Ground for Divorce in New Mexico

In New Mexico, divorcing spouses can file for either a "fault" or "no-fault" divorce.

Adultery and Fault-Based Divorce

In a "fault" divorce, one spouse must claim and prove that the other committed some misconduct that led to the break-up of the marriage. Fault grounds for divorce include adultery, cruel and inhuman treatment, and abandonment. (N.M. Stat. Ann. § 40-4-1 (2021).)

Adultery is not illegal in New Mexico, and the state does not have a legal definition for it. However, adultery generally means one spouse has had voluntary sex with someone other than a legal spouse. If you file a fault divorce alleging that your spouse committed adultery, you must produce sufficient and admissible evidence of the adultery in court. Evidence might include witness testimony, private investigator reports, photos, phone records, credit card receipts, and anything else that proves that your spouse was cheating.

Adultery and No-Fault Divorce

Many couples in New Mexico choose to proceed with a no-fault divorce even when they've experienced adultery in their marriage: Either spouse can request a divorce on the ground of "incompatibility"—the couple can't get along anymore, and the marriage has broken down to the point where there is no chance of reconciliation. There is no need to point the finger at either spouse or assign any blame, which makes it a common ground for divorce.

Because the no-fault divorce process generally avoids the need to air any dirty laundry in court, it can result in lower conflict between the spouses and might have a less emotional impact on the family, including any children of the marriage.

Overview of Alimony in New Mexico

New Mexico courts have the power to award one spouse alimony (also called spousal support) during the divorce proceeding and for a period after finalizing the divorce to ensure that both spouses walk away from the marriage with the same or similar standard of living. The goal of alimony is to lessen the impact of financial inequity that the spouses might experience after the divorce. For example, when one spouse worked full-time and the other remained at home (and out of the workforce) to raise children or support the household, it can be extremely difficult for the homemaker to re-enter the workforce and become self-supporting.

Courts in New Mexico can award the following types of alimony:

  • Long-term. Support one spouse pays to the other for an indefinite period. Long-term support is rare, and the court generally reserves it for cases where the spouses were married for a long time and where one spouse is unable to become self-supporting.
  • Rehabilitative. Support that one spouse pays to the other to fund education, training, or other efforts that will increase the supported spouse's ability to earn income and become self-supporting in the future.
  • Transitional. Support that one spouse pays for a limited amount of time to supplement the recipient's income.

The court may order a spouse to pay support in monthly installments, periodic payments (like an annual payment after tax filings), or lump-sum payments.

New Mexico courts do not award spousal support automatically. Instead, to determine whether to order support and how much to award, judges must consider all of the following:

  • each spouse's age, health, and means of support
  • both spouse's current and future earnings and earning abilities
  • the good faith efforts of each spouse to keep a job or become self-supporting
  • each spouse's reasonable needs, such as the standard of living of each during the marriage, maintenance of medical insurance for each spouse, and life insurance issues
  • the length of the marriage
  • the amount of property the court awards to each spouse in the divorce
  • each spouse's assets and liabilities, including income property, and
  • other agreements entered into by the couple in consideration of separation or divorce.

(N.M. Stat. Ann. § 40-4-7 (2021).)

Does Adultery Impact Alimony in New Mexico?

Even though New Mexico judges can grant a divorce on the grounds that a spouse committed adultery, they cannot consider adultery when deciding if a spouse is entitled to alimony or calculating the amount and duration.

Adultery and Child Custody or Support in New Mexico

Along with property division and spousal support, the judge in charge of your divorce must also allocate child custody and parenting time and decide how much child support the non-custodial parent will pay. In New Mexico, before awarding custody to either parent, the judge must determine what's in the child's best interest, which does not include either parent's behavior during the marriage. Instead, the court will evaluate:

  • the child's preference
  • each parent's wishes for custody
  • the child's relationship with each parent
  • the child's school, home, and community record, and
  • the family's mental and physical health.

(N.M. Stat. Ann. § 40-4-9 (2021).)

In rare cases, a judge might consider a parent's marital misconduct, but only if the behavior continues after the divorce and impacts the child's safety or overall well-being. For example, a judge might deny or limit custody of a parent who has an affair with an individual who abuses drugs around the minor child after the divorce.

In New Mexico, child support depends only on each parent's income, the number of children involved, and the custody arrangement. Judges will not consider either parent's marital misconduct when determining child support. (N.M. Stat. Ann. § 40-4-11 (2021).)