Divorce and Legal Separation in New Mexico

Answers to questions about about divorce and legal separation in New Mexico.

By , Attorney · Cooley Law School
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What Is the Difference Between Divorce and Legal Separation?

When couples want to end their marriage, most will request a traditional divorce from the court. Traditional divorce means that the judge will decide custody, support, and property division matters and legally terminate the marriage. In New Mexico, couples who aren't quite ready for a divorce's permanency may choose to request a legal separation, which follows the same procedure as a divorce but allows the couple to remain legally married.

It's a common misconception that a legal separation is a "partial" divorce or an initial step toward divorce. If you and your spouse are legally separated and later decide to pursue a divorce (say because one of you wants to get married to someone else), you will have to repeat the same steps you took to request a legal separation. Thus, when you file for legal separation, if you are certain that you want to end your marriage, it might make more sense to pursue a divorce unless you wish to remain legally married for a specific reason.

What Is Legal Separation?

In New Mexico, legal separation occurs when spouses stop living together as a married couple (meaning no cohabitation) and file the proper paperwork to ask a court to grant them a legal separation. A legal separation is similar to divorce in that the law permits a judge to decide custody, child support, and alimony, and divide marital property. (N.M. Stat. Ann. § 40-4-7 (A).) The most significant difference between divorce and separation is that with a legal separation, the spouses remain legally married, and neither can remarry a new partner until going through the formal divorce process.

Why Choose Legal Separation?

There are many reasons why a couple chooses legal separation instead of a divorce. If a family has young children, parents may desire to remain legally married for the child's benefit. Or, one spouse may be ill and require the other's health insurance, which would typically terminate upon divorce.

One common reason for legal separation is when a couple practices a religion that forbids divorce. Legal separation allows the couple to live separate lives without sacrificing their beliefs. In the end, deciding to end a marriage, whether through a divorce or legal separation, is entirely up to the spouses. It's important to note that if one spouse wants a divorce while the other wants a legal separation, the court will only continue with the divorce process.

Residency Requirements for Divorce and Legal Separation

In New Mexico, at least one spouse must live in the state for 6 months before filing for divorce. (N.M. Stat. Ann. § 40-4-5.) The state's 6-month residency requirement does not apply to a legal separation. However, if children are involved, the children must live in New Mexico for at least 6 months before the court has jurisdiction to decide custody, visitation, and child support.

Does New Mexico Require Separation?

In some states, before either spouse can file for divorce, a couple must live separate and apart, without cohabitation for a period of time. In New Mexico, however, couples can file for divorce without first physically separating. Instead, the filing spouse only needs to allege incompatibility in the marriage to begin the divorce process. (N.M. Stat. Ann. § 40-4-1 (A).) Incompatibility means that you and your spouse can't work through your marital troubles due to a conflict of personalities, and there is no chance you can reconcile. (N.M. Stat. Ann. § 40-4-2.)

If you request a legal separation from the court, by its very definition (and by law), you and your spouse must be permanently separated and no longer cohabitating when you file. (N.M. Stat. Ann. § 40-4-3.)

Filing for Legal Separation

Once you've decided to file for a legal separation, you will need to complete the required forms and submit them, along with a fee, to the district court in the county where you live. Alternatively, you can file in your spouse's county if it's different from your own. However, remember that the location you file is where your case will remain throughout the legal process.

After you file the appropriate forms, you must give (serve) a copy of the paperwork to your spouse. You can hire a private process server (for a fee), request delivery by a local law enforcement agency, or ask an adult family member or friend to deliver the documents for you. After you provide the documents, complete a "proof of service" form and submit it to the court.

Once the court is satisfied that you've completed all the forms and that your spouse received the documents, New Mexico law requires the court to wait for at least 30-days after service before scheduling any hearings. The 30-day waiting period allows the recipient spouse to review the documents with an attorney and file a response.

Unless you and your spouse create a separation agreement in advance, the court will decide how to handle any outstanding issues, such as child custody and visitation, child support, spousal support, and property division. After evaluating your case, the judge will issue a final decree of legal separation.

In New Mexico, couples can also agree to utilize alternative dispute resolution called binding arbitration to resolve conflicts without asking a judge. Binding arbitration allows both spouses to explain their case to a third party, who will then decide how to handle the outstanding issues. (N.M. Stat. Ann. § 40-4-7.2)

What Is a Separation Agreement?

Legal separation in New Mexico doesn't have to be contentious. If you and your spouse work together, you both can control exactly what happens in your case regarding custody, support, and property division. A separation agreement is a legally binding document written by both spouses (or their attorneys) that contains the terms of the separation. Along with provisions regarding significant issues like custody and support, your agreement should include:

  • the date of your separation
  • whether you'll share bank accounts or other assets
  • a division of the marital property you owned at the date of your separation
  • a provision regarding how you'll split property either spouse acquires after the separation
  • which spouse will continue to drive the marital vehicles, and
  • any other issue important to your family.

Separation agreements are binding, and once you sign the document and present it to the court, the judge will incorporate it into your final separation orders. If either spouse chooses to divorce in the future, the court can merge the agreement into the final divorce decree, which saves time and money on the issues you've already resolved.

Do I Need to Hire a Lawyer?

Not necessarily. The law doesn't require you to hire an attorney, and many people represent themselves, particularly those involved in a straightforward divorce or separation case.

However, if you have children or significant assets and debts, it's best to consult with a family law attorney to inform you of your legal rights and responsibilities. From there, you can determine whether you need to hire an attorney to represent you through the entire legal proceeding or just for a certain part (for example, a complicated custody hearing). It's also important to note that one lawyer cannot represent both spouses.

If you can't afford an attorney but need help, there are some free legal resources in New Mexico. New Mexico Legal Aid is another great resource for New Mexico residents who meet the income requirements. You can access their website by clicking here.

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