Ending a marriage can be a stressful and challenging time in a person's life—confusing court proceedings only add to the stress. When you or your spouse don't agree on your divorce-related issues, the process is long, adversarial, and expensive. However, if you and your spouse can agree on all of the issues required to end your marriage, you may be able to file an "uncontested" divorce. In New Mexico, an uncontested divorce can save you stress, time, and money.
This article covers the basics of divorce in New Mexico, particularly, an uncontested divorce. If you have questions after reading this article, it's a good idea to speak with a New Mexico divorce attorney.
If you and your spouse disagree, whether it's on the choice to divorce, on or how to handle the issues involved in ending a marriage, the court considers your divorce "contested." For a contested divorce, both you and your spouse will usually need lawyers, and there will be multiple court appearances and possibly a trial before the judge decides the contested issues and grants you and your spouse a divorce.
In contrast, an "uncontested divorce" is available in New Mexico when you and your spouse agree that the marriage should end and how to settle all of your divorce issues, like property division, spousal support (alimony), custody, and child support. An uncontested divorce is usually much faster and cheaper than a contested divorce because you don't have any disputes for the judge to decide.
In New Mexico, a divorce is also called a "dissolution." The laws and paperwork you will need to fill out and file may use either or both terms, so don't be confused.
To be able to file for an uncontested divorce in New Mexico, both you and your spouse must agree on the following issues:
If you and your spouse have children together and your children are under age 18, you both must also agree on:
Furthermore, either you or your spouse must have lived in New Mexico for at least six months immediately before you file for divorce, and one of you must be "domiciled" in New Mexico. (N.H. Stat. Ann. § 40-4-5.) "Domiciled" means that you live in New Mexico and intend to stay living in New Mexico for the foreseeable future. If you have children together, the children must have lived in New Mexico for at least the last six months and must currently live in New Mexico.
The process of obtaining an uncontested divorce in New Mexico requires you to file different forms depending on whether you and your spouse have children under the age of 18 together. The New Mexico Supreme Court provides all of the forms required for an uncontested divorce on its website.
If you do not have children with your spouse, you will file all of the forms included in the Dissolution Without Children Packet provided by the New Mexico Supreme Court. The packet includes instructions and all of the forms needed to proceed with a basic uncontested divorce without children.
If you and your spouse have children under the age of 18 together, you will file all of the forms included in the Dissolution With Children Packet provided by the New Mexico Supreme Court. The packet includes instructions and all of the forms needed to proceed with a basic uncontested divorce with children.
Regardless of whether you and your spouse have minor children, the process to begin an uncontested divorce is the same. First, you have to fill out the following forms:
Once completed, you must file these papers with the Court Clerk at the Supreme Court in the judicial district in which you or your spouse lives. Each court's fee schedule may vary, so it's important to contact your court before you file your paperwork. For example, the New Mexico First Judicial District Court has its fees listed on the website, which you can view here. When you file, you have to pay a filing fee. If you can't afford it, you can apply to have the court waive the fee using Form 4-222 N.M.R.A.
Serve your spouse
When you file your paperwork, the Court Clerk will sign and stamp the summons and give it back to you with a copy of your Petition. Next, you have to serve your spouse with the Petition and Summons.
To properly serve your spouse, someone other than you over the age of 18 must hand-deliver the papers to your spouse, or you can mail your paperwork to your spouse by certified mail. If you have someone hand-deliver the papers, then that person must complete and sign an affidavit (written declaration) of service, which you then must file with the court. If you choose to serve by mail, your spouse must sign the receipt indicating receipt of the paperwork and send it back to you for filing with the court.
The settlement agreement
The next step to secure an uncontested divorce in New Mexico is to complete and file a Marital Settlement Agreement (Form 4A-301 N.M.R.A.). The Marital Settlement Agreement describes how you and your spouse have agreed to divide property and debts and whether one of you will pay spousal support, and if so, how much. If you and your spouse have minor children together, you also have to file the Custody Plan (Form 4A-302 N.M.R.A.) and the Child Support Obligation (Form 4A-303 N.M.R.A.).
If you're having problems agreeing with your spouse, you can request the assistance of a mediator if the judicial district in which you have filed has a mediation program. If you need help settling child support or other financial issues, file Form 4A-205 N.M.R.A. If you need the help of a mediator for the issues of custody and time sharing of your children, file Form 4A-204 N.M.R.A.
Once you and your spouse complete and sign the Marital Settlement Agreement in front of a notary, you must submit the agreement, along with a completed Final Decree of Dissolution of Marriage, to the court. If you don't have children, complete and file Form 4A-305 N.M.R.A. If you have children, submit Form 4A-306 N.M.R.A. The court will review your paperwork and, if approved, the judge will sign the Final Decree, making your divorce official and the terms of your Marital Settlement Agreement binding on both you and your spouse, just like a contract.
You can find all of the New Mexico divorce forms on the state's official website.
For the full text of the laws governing divorce in New Mexico, see N.M.S.A. § § 40-4-1 through 40-4-6.