New Mexico divorce details
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Uncontested VS Contested Divorce in New Mexico
The two main types of divorce are contested and uncontested ones.
Contested divorce implies that the spouses meet at the court hearings to fight for some important terms of the case. They expect the judge to decide who gets what, and they use the assistance of attorneys to defend their interests. A contested divorce is typically stressful, expensive, and time-consuming. It should be used as a last resort when you are unable to come to terms with your spouse.
An uncontested divorce can be arranged both with or without attorneys help. And in each case, it demands you to be responsible and ready to discuss all the most important divorce issues with your spouse. It is assumed that the partners can reach an agreement independently, write an agreement, sign it, and submit to the court. It can speed up the divorce significantly, and there are many features and ways how to arrange an uncontested divorce correctly, so let’s sort them out point by point.
Uncontested Divorce in New Mexico
In New Mexico, uncontested divorces are welcomed by the law. It is considered that there is no need to go to trial if the case can be solved without it.
An uncontested divorce does not imply numerous court hearings (only a short final hearing is required in the case where children are involved). All the negotiation is kept out of court, so the spouses should be ready to communicate calmly, politely, and rationally to reach a common goal. "The Marital Settlement Agreement” signed by both spouses, should express mutually agreed terms of the post-divorce life and both parties should be satisfied with it.
An uncontested divorce is very adaptive for different cases, and many couples refuse the long court battles nowadays. An uncontested divorce is always much cheaper and takes less time than a contested one.
Grounds for Divorce in New Mexico
In order to file for divorce, you must have legal grounds. As New Mexico is a mixed state, you can file on both fault and no-fault grounds. That is, it is not necessary to point a fault in a spouse, and a simple desire to terminate the marriage is enough to file for divorce in New Mexico.
This desire to divorce is formulated as “incompatibility” under the New Mexico law. It is the only no-fault ground.
The other three grounds are fault-ones:
- Cruel and inhumane treatment.
Fault grounds basically refer to contested divorces, while an incompatibility is pointed as a ground for uncontested cases.
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New Mexico Residency Requirements to File for Divorce
To file for divorce in New Mexico you or your spouse must be a resident of the state for at least 6 months before filing the Petition and have a domicile in the state.
To be “domiciled” means not only currently live in the state, but also have intentions to stay there for the foreseeable future.
Note that if you have children from the marriage, they also need to meet these residency requirements.
How to File for an Uncontested Divorce in New Mexico
You should note that your individual situation may dictate your course of action, but every uncontested divorce includes these basic steps:
- File the Petition for Dissolution of Marriage (with or without children). Once you file it at the Supreme Court and pay a filing fee, the divorce case is open.
- The court clerk must sign and stamp the Summons form and give you a copy of the Petition. Serve your spouse with these papers. The forms must be personally handed to your spouse, but you are not allowed to do it yourself.
- After your spouse is served with the paperwork they have 30 days to respond. They should file an Answer, which officially tells the court their side of what was asked in the Petition.
- New Mexico doesn’t have a “cooling-off” waiting period. Thus, you can get a Final Decree of Dissolution of Marriage approved by the court as soon as you make a Settlement Agreement and after the court considers your case.
Do-It-Yourself Divorce in New Mexico
Do-it-Yourself divorce refers to a process where all the steps of the divorce procedures are arranged by the spouses independently. This involves preparing all the documents and representing yourself in court without the help of an attorney. The step of preparing the documents correctly can be quite tricky, so you can request the help of online services. If you are fully prepared and are fully aware of the process, a DIY Divorce can help save you a lot of time and money.
How Much Does an Uncontested Divorce Cost?
In New Mexico, the base price of an uncontested divorce is equal to the filing fee of around $130. There are additional expenses depending on the services you require such as mediation fees, serving fees, and attorney fees. On average, the total cost of an uncontested divorce is $1,000, while for a contested case, it can be up to $10,000.
How Long Does it Take to Get Divorced in New Mexico?
New Mexico has rather strict residency requirements: you or your spouse must be a resident of the state for 6 months, which is not the shortest term.
However, there is no so-called “cooling-off period” in New Mexico, so you do not need to wait a long time for the final hearing. The court starts to consider your case as soon as the Defendant answers the Petition. If the Defendant prefers not to use all the allowed time (30 days) to give an answer to the Petition, the divorce case may be very quick in New Mexico.
How to Serve Your Spouse in New Mexico
Once you’ve filed a Petition for dissolution, the next step is to serve your spouse with its copy and the Summons. In New Mexico, there are three legal ways to deliver this paperwork:
- You can ask any person you trust (and who is over the age of 18 and is not related to the case) to hand the papers to your spouse. They must fill out a special form that confirms the successful delivery (Return of Service of Process, Form DNM-500).
- You can use a service of the sheriff of the county where your spouse resides or works.
- You can send an envelope through certified mail (restricted delivery, return receipt requested).
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Documents You Need to Get a Divorce in New Mexico
Below is a list of the basic documents you need to file for divorce in New Mexico. Note that you don’t need to complete all of them as it depends on your individual case.
- Petition for Dissolution of Marriage with children (or without children) - Forms DNM-100-106.
- Summons - Form DNM-400.
- Notice of Summons and Receipt of Summons - Form DNM-450 (the form is needed to notify the defendant about the case and to request an answer).
- Appearance, Waiver and Consent - Form DNM-350.
- Marital Settlement Agreement.
- The Decree of Dissolution (the 6-pages form, that cover all the issues of the certain case, for example, like custody, parenting plan etc. Forms DNM-200-206).
Online Divorce in New Mexico
Online divorce refers to the process of preparing all the necessary documents accurately through an online service. You just need to order the papers, pay the filing fee, print out the documents, and file them at court. Such a process can help you save a lot of money as compared to getting the documents completed with the help of an attorney. For just $139, you can rest assured that the documents are prepared accurately and on time to be approved by the court.
Rules for Child Support and Visitation in New Mexico
In New Mexico, child support is determined by Guidelines. The amount of child support is calculated based on a formula that takes into consideration both parents’ gross income. It is assumed that both parents must contribute to a child support. Sometimes, the amount can be even higher than how much the parents actually earn, if the court has a reason to claim that either parent has a capacity to earn more. Generally, all the children-related divorce rules are legislatively aimed at ensuring the best interests of the child.
As for custody, there are two main types of how it can be determined in New Mexico:
- Legal custody.
Legal custody refers to how much each parent participates in a child's life most important decisions regardless of where they live. According to the family law, it is fair when both parents have the decision-making power when it comes to certain issues of the child’s life such as their health, which school to attend, and others. Thus, legal custody is often awarded to both parents - so-called “joint legal custody”. Surely, if it is found by the court that the influence of one of the parents is harmful or even dangerous for the child, then sole legal custody will be awarded to the more responsible party.
- Physical custody.
This type of custody determines with whom the child lives with. This parent is called the Residential Custodian and the other parent is allowed to use their visitation rights. Moreover, joint physical custody can be awarded to both parents if both of them spend a significant part of the time with their child. “Shared parenting" doesn't require parenting time to be split half-and-half, and it doesn't mean that the child has to have two residencies at the same time. But if a non-custodial parent has an intention to care for the child, besides alternate weekends, it is always welcomed by the court.
Rules for Spousal Support in New Mexico
In New Mexico, spousal support can be awarded to either spouse who can prove that are in need of financial support, and that the other spouse has the financial capacity to pay it. There is no strict formula to calculate the amount of spousal support, but a great number of factors are considered by the court before the alimony can be awarded.
Generally, there are three possible types of spousal support in New Mexico:
- Transitional alimony.
This is a short-term payment established to help the spouse with the lower income to “recover” after the divorce (to find a job or to review family budget).
- Rehabilitative alimony.
This support must be spent on education, training, improving professional skills, and other actions that can help the spouse with a low income to support themselves in the future, and become self-sufficient.
- Long-term alimony.
Long-term spousal support can be awarded for the entire life. This is very rare, and you must have really convincing reasons to claim it. Typically, long-term alimony is awarded if the marriage lasted for a long term (at least 20 years).
Division of Property in New Mexico
All family property can be distinguished between separate and marital. Separate property is all that belonged to the spouses prior to marriage. It is not subject to division during the divorce proceeding. In comparison, marital property includes everything that was earned and acquired during the marriage.
New Mexico is one of the community property states. This means that all marital property must be divided equally between the spouses regardless of whose name the property is under or who contributed more.
Division of Debt in New Mexico
Debts are officially considered to be the part of a property. Although it may be very hard to accept, according to the community property rules, it is also split between the spouses 50/50. If the debts were collected during the married life, it does not matter who collected it.
Divorce Mediation in New Mexico
Mediation is an alternative to dispute resolution. Mediation helps to reach a mutually acceptable Settlement Agreement. Thus, it is a very important option for an uncontested divorce, especially if issues regarding child custody and property division are involved. In New Jersey, the court requires every couple, who have the default divorce to go to the mediation procedure.
During the mediation session, the spouses meet and negotiate under the guidance of a qualified mediator. The mediator doesn’t order something, but they may provide advice on what decisions are reasonable and express their opinion on what the court would do in certain cases. The mediator basically helps the spouses to build a strategy for the divorce proceeding and reach an agreement.
Note that New Mexico Law insists divorce mediation to be the first step to take during the divorce proceeding. All the cases should be resolved peacefully if it’s possible, and litigation should be a last resort, in case mediation fails.
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How to Divorce a Missing Spouse in New Mexico
If you are unable to locate your spouse to serve them with the necessary paperwork, “Service by Publication” can take place.
You must first make a diligent search of your spouse and provide evidence of your attempts to the court in a special affidavit. If the court is satisfied, they may allow you to publish the notice of your case in the local newspaper. It must be published once a week for 4 weeks.
Once the notice is published, you should confirm it with by filing the Affidavit of Publication with the court. If your spouse continues to stay silent, a default judgement can be entered against them.
Default Divorce in New Mexico
Default divorce refers to finalizing the divorce case with the participation of one of the spouses.
The case mentioned above regarding service by publication is an example of a default divorce.
In New Mexico, no one can force you to remain married. Officially, one spouse’s desire to divorce is enough reason to file for divorce. At the same time, it’s reasonable and just that you give your partner the chance to respond or to contest the case.
So regardless, you must serve your spouse with the divorce paperwork. However, if they refuse or fail to answer within 30 days, you can ask for a default divorce. In order to do so, you should file an Affidavit for entry of default, Entry of default form, and the Decree of dissolution of marriage. Once the Decree is signed by the judge, you are granted a divorce without your spouse’s terms.
Annulment of Marriage in New Mexico
Annulment refers to a process that declare a marriage as invalid, or as it never existed in the eyes of the law. There are certain valid grounds for one in New Mexico:
- Underage marriage (under 18 years of age or at least 16 but without a consent for the marriage).
- Consent to marriage obtained by duress or fraud.
- Mental incapacity to give consent at the time of marriage registration.
Legal Separation in New Mexico
In New Mexico, Legal separation is another more way to terminate a marriage. To file for legal separation, the spouses must live apart. But in essence, legal separation is much more than the termination of cohabitation.
Legal separation is very similar to divorce. The spouses divide their property and debts, and split custody and arrange the child/spousal support under this procedure. There is a “Separation agreement” they need to make and sign to solve all these issues. However, they still officially remain married. And regardless of how long the spouses live apart, they are not allowed to remarry.
Legal separation is not very common in New Mexico, but people can have their reason to seek a separation rather than a divorce. For example, there are no residency requirements for adults according to the separation rules, or, maybe, the spouses are afraid to lose some insurance or maintenance benefits that they have as a married couple.
Same-Sex Divorce in New Mexico
Same-sex marriage and divorce were recognized since 2013 in New Mexico (2 years before the Supreme Court ruling). Even though same-gender marriages were allowed in some areas, not everyone can file for divorce. Due to the residency requirements, couples who went to another state to marry had to move to that state to get a divorce. Nowadays, same-sex marriage is recognized just like any other marriages and you are not required to get a divorce in the place where you got married. The divorce process for same-sex couples is the same as for any other divorce procedure.
Military Divorce in New Mexico
In New Mexico, like the other states, all military members can get a divorce in the state where they are stationed and and all of them are protected from default judgment by the Soldiers and Sailors Civil Relief Act. This means that the divorce proceeding may be delayed for the whole time a military spouse is on active duty plus an additional 60 days after that. This is so that the military spouse could use their right to contest the divorce or to express their terms. Any duty member can waive this opportunity if they are OK with an uncontested or even default divorce. They must be personally served with all the divorce paperwork unless they file a waiver affidavit.
How to Divorce a Spouse in Jail in New Mexico
Basically, the process for divorce is the same regardless of the status as an inmate. Each Defendant should be properly served with the divorce documents. In the case of uncontested divorce, there is no any mandatory court hearing in New Mexico. Thus, an uncontested case can be arranged without your partner’s physical presence. And the most convenient option is a default divorce. Sometimes the spouses agree on it in advance in order to save time and money.
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New Mexico Divorce Filing Fee
Court filing fees are in addition to the cost of using DivorceFiller.com. This cost may vary by county. Please check with your local courthouse to determine the exact amount.
Can a Filing Fee Be Waived?
The filing fee may be waived for indigent petitioners or partially depending on the district.
You must file the Application for Free Process (Form 4-222) and an Order for Free Process (Form 4-223). The District Court Judge considers all the information regarding the petitioner’s income and financial situation and either approves or rejects their request.
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