Every state has its own rules and procedures for filing a divorce. Here's what you need to know to get started with your New Mexico divorce.
You must meet a state's residency requirements before you can file for divorce in its courts. To get a divorce in New Mexico, one or both of the spouses must have resided in the state for at least six months immediately before filing. The person must also have a "domicile" in New Mexico: Either be physically present in the state and have a residence or have a present intention of staying in the state indefinitely. (N.M. Stat. § 40-4-5 (2022).)
You will file your divorce in the New Mexico district court in the county where either you or your spouse lives. (N.M. Stat. § 40-4-4 (2022).)
New Mexico allows both "no-fault" and "fault-based" divorces. A no-fault divorce is one in which the court doesn't require either spouse to prove that the other's bad acts were the cause of the divorce. In a fault-based divorce, one or both of the spouses must show that the other's actions caused (were "grounds for") the failure of the marriage.
No-fault divorces in New Mexico reach resolution much faster than fault-based divorces because the spouses don't have to argue about or prove who was responsible for the divorce. To get a no-fault divorce in New Mexico, you will need to claim on your divorce petition that you and your spouse are "incompatible." (N.M. Stat. § 40-4-1(A) (2022).)
Under New Mexico law, incompatibility exists when the marriage relationship becomes pointless because of discord or conflict, and there's no hope that the couple can reconcile. (N.M. Stat. § 40-4-2 (2022).)
In a fault-based divorce, one or both spouses will have to present evidence to the judge that proves the spouse committed acts that meet one of New Mexico's fault-based grounds for divorce. New Mexico judges grant fault-based divorces on the grounds of:
(N.M. Stat. § 40-4-1 (2022).)
Generally, there are two types of divorce—uncontested and contested. An uncontested divorce is one where the spouses agree on all divorce-related matters, such as division of property, child custody, and alimony (spousal support). A contested divorce, on the other hand, is one where the spouses disagree on at least one topic and must ask a court to decide the issues in their divorce.
Uncontested divorces usually reach resolution faster and are less expensive than contested divorces because there's no fighting in court. Instead, the judge needs only to review and approve the spouses' marital settlement agreement and issue a divorce decree.
New Mexico has a set of approved dissolution of marriage forms that people getting a divorce must use. They're broken down into sets based on what stage of the divorce process you're in (for example, you'd use Stage 1 forms to begin your divorce). You can find information about and links to all the forms in the New Mexico courts' dissolution of marriage information guide.
Unlike some states, New Mexico doesn't have separate forms for uncontested divorce (such as a joint petition form). However, you and your spouse must prepare and sign the completed forms in order to obtain an uncontested divorce. To begin your New Mexico uncontested divorce, you'll need to file a:
If you have minor children, you will also need to include other forms, such as:
Some courts have county-specific forms as well; check with the district court clerk's office where you will file to make sure that you have all the right forms.
Once you and your spouse have signed the completed forms, you will then take them (along with two copies) to the clerk's office in the district court that serves the county where either you or your spouse lives.
A contested divorce begins when one of the spouses files a petition for divorce with the court. The court will require the following forms:
Be sure to check with the clerk of court to see if there are additional forms you should file.
Along with filing the right paperwork, you'll have to pay court filing fees to begin your divorce. The 2022 statutory filing fee for divorce in New Mexico is $137. (N.M. Stat. §§ 34-6-40, 40-12-6 (2022).)
If you can't afford to pay the filing fees, you can ask the judge to waive the fees. In New Mexico, this waiver is called an "application for free process." To request a waiver, file an Application for Free Process and Affidavit of Indigency. If the court grants your application, you won't have to pay any court costs or fees for serving documents on your spouse during your divorce.
After you file the paperwork, you'll need to provide notice to your spouse of the divorce by "serving" (delivering) copies of what was filed with the court. If you and your spouse filed together, you don't have to serve them. You can't serve your spouse yourself; you must have someone who's at least 18 years of age and not a party to the case do it.
In New Mexico, you can complete service by:
(N.M.R.A. Rule 1-004 (2022).)
If you don't know your spouse's address or aren't able to successfully serve them after trying, ask the court for permission to serve the documents by an alternative method, such as publishing a notice in the newspaper.
The spouse who filed for divorce (the "petitioner") is responsible for filing the original summons and a completed return form to prove that the other spouse was served.
If you'd like to DIY your divorce, you can use the New Mexico Guide & File service. It will ask you questions about your divorce to help find and fill in the correct documents. You can also find all the New Mexico divorce forms online.
If you're working with an attorney, your attorney will assess your situation and fill out, file, and serve all the necessary forms. Many divorcing couples can't afford to hire an attorney to handle their entire case, but would like some assistance with completing and filing their forms. If this describes your situation, consider using an online divorce service or finding an attorney who will consult with you on an as-needed basis. Low-income individuals might qualify for reduced-fee or free legal aid.