Adultery is a common and painful reason for divorce. If you have decided to pursue a divorce based on adultery in your marriage, you may have many questions about how adultery will affect the divorce proceeding in general, and specifically, whether it may impact any particular aspect of the divorce, such as alimony.

This article explains the basics of adultery and alimony in New Mexico. If you still have questions after reading this article, you should contact an experienced family law attorney for advice.

Adultery As Legal Ground for Divorce

In New Mexico, divorcing spouses can request a “fault” or “no-fault” 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.

In New Mexico, the fault grounds for divorce include adultery, cruel and inhuman treatment and abandonment. While some states have a legal definition of adultery, New Mexico does not. Adultery generally means one spouse has had voluntary sex with someone who is not his or her spouse.

If one spouse alleges that the other committed adultery, he or she will have to produce sufficient and admissible evidence of the adultery in court. This could include witness testimony, private investigator reports, photos, phone records, credit card receipts, and any other evidence that proves the other spouse was cheating.

A fault-based divorce based on adultery can be emotionally painful for both parties, and it generally costs more in court and attorney’s fees due to the requirements of proving the claims in court.

In contrast, with a “no-fault” divorce, either spouse can request a divorce on the ground of “incompatibility,” which means that 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. This is a very commonly used 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 may have less of an emotional impact on all parties, including any children of the marriage. Couples may (and many do) choose a no-fault divorce, even if they’ve experienced adultery in their marriage.

For more information on divorce and legal separation in New Mexico, click here.

Overview of Alimony in New Mexico

In New Mexico, courts may award financial support (“alimony”) to a divorcing spouse. There are different types of alimony, including:

Long-Term Alimony – financial support paid to a supported spouse for an indefinite period of time.

Rehabilitative Alimony – alimony is paid to fund education, training or other rehabilitation which will increase the supported spouse’s ability to earn income and become self-supporting.

Transitional Alimony - financial support paid for a limited amount of time to supplement the income of the receiving spouse.

The court is required to consider several factors when making an award of alimony. These factors include:

• the age, health and means of support for each spouse

• the current and future earnings and earning ability of each spouse

• 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

• how long the couple was married

• the amount of property each spouse has

• the assets and liabilities of each spouse, including income produced by property owned by either spouse, and

• other agreements entered by the couple in consideration of separation or divorce.

For more information on alimony in New Mexico, click here and here.

Does Adultery Impact Alimony in New Mexico?

Other than providing a ground to bring a divorce, adultery does not come into play in New Mexico divorce proceedings. New Mexico courts do not consider adultery when deciding if a spouse is entitled to alimony, or when calculating the amount of alimony to be awarded. Likewise, the court will not consider adultery when dividing property, or when making child custody or child support decisions.

Resources

N.M. Stat. § 40-4-1 - Dissolution of marriage

N.M. Stat. § 40-4-2 - Incompatibility

N.M. Stat. § 40-4-7 - Proceedings; spousal support; support of children; division of property

For more information on New Mexico family law and divorce issues, click here.

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