New Mexico divorce details
Uncontested VS Contested Divorce in New Mexico
Pondering of divorce the main choice is between contested and uncontested type. These are two ways you may go through this process.
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 an assistance of attorneys to defend their interests. A contested divorce is typically rather stressful, expensive, and time-consuming thing. It should be used as a last resort if you have not the slightest desire to negotiate with your spouse directly.
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, then to write an agreement, sign it, and submit to the court. It can speed up the divorce significantly, and there are a lot of 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 (the only short and dry final hearing is required if there are children involved). All the negotiation is kept out of court, so the spouses should be ready to communicate calmly, politely, and rational to reach a common goal. "The Marital Settlement Agreement" signed by both spouses should express mutually agreed terms of the post-divorce life, both parties should be satisfied with it.
An uncontested divorce is very adaptive for different cases, and a lot of americans refuses the long court battles nowadays. An uncontested divorce is always much more cheaper and takes less time than a contested one.
Grounds for Divorce in New Mexico
Filing for divorce, you must point a certain ground. As New Mexico is a mixed state you can file both on fault and no-fault grounds. That is, it is not necessary to call some fault of the spouse the cause of divorce, 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.
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 intention to stay there for a foreseeable future.
Notice, 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 notice that your individual situation may dictate you some additional terms and efforts, but every uncontested divorce includes basic steps which are common for everybody. Here they are:
- 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 the 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 by yourself.
- After your spouse is served with the paperwork he/she has 30 days to respond. He/she should file an Answer, which officially tells the court his/her side of what was asked in the Petition.
- New Mexico doesn’t have a “cooling-off” waiting period, so you can get a Final Decree of Dissolution of Marriage approved by the court as soon as you make a Settlement Agreement plus some time for the court to consider your case.
Do-It-Yourself Divorce in New Mexico
DIY divorce means a divorce arranged without the lawyer assistance. It is a reasonable option for the couples whose cases are rather simple, who have neither big assets nor more debts, and can negotiate peacefully.
To arrange a Do-It-Yourself divorce you can get the needed forms in the appropriate court and use a Self-Help Guide on the website of the Judicial Branch of New Mexico.
For the even easier way, you can appeal to an online divorce company like this one and get a specially prepared set of documents and forms just for $149 and 1 day.
How Much Does an Uncontested Divorce Cost?
In New Mexico, the start price of an uncontested case is rather low - it is about $130 for a filing fee. Surely, there can be additional expenses for mediation (depending on how many sessions do you need), serving your spouse or some other assistance, and, eventually, your uncontested divorce can cost even up to $1000, but while an average cost of a contested divorce in NM is $10000, the comparison is still impressive.
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 any so-called “cooling-off period” in New Mexico, so you do not need to wait weeks or months for the final hearing. The court starts to consider your case just when the Defendant answers the Petition. If the Defendant prefers not to use all the allowed time (30 days) for giving an answer and responds immediately, the divorce case may be very quick in NM.
Papers & Documents You Need to Get a Divorce in New Mexico
Surely, every divorce case is unpredictable, and we don’t know what additional forms you may need. But here is the basic set of forms which are necessary for every uncontested divorce in NM.
- 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).
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 18 y.o. and is not the party of your case) to hand the papers to your spouse. This person must fill out the special form that confirms a 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 by the certified mail (restricted delivery, return receipt requested).
Online Divorce in New Mexico
Though you cannot notarize your divorce paperwork online you can complete it at least. Nowadays, the majority of state courts of US provide the citizens with the necessary divorce forms and self-help duidances.
But if you don’t want to dig into the great amount of information about local rules and laws, you'd better seek for the help of our service. We do all this search work for you and select the forms which are relevant for your particular case so that you can get a ready-to-sign packet of documents without any effort and in the shortest term.
Rules for Child Support and Visitation in New Mexico
In a New Mexico divorce, child support is determined with a Guidelines. An amount of the child support is calculated due to the formula considering both parents’ gross income. It is assumed that both parents must contribute to a child support. Sometimes, an amount can be even bigger than an actual earning of the parents, 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 custody 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 he/she lives. According to the family law, it is fair when both parents have a voting right in order to choose, for example, a child’s religion, or which school to attend, to discuss travelings and movings and so on. So, in New Mexico, legal custody most oftenly is 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 the sole legal custody will be awarded to the more responsible party.
- Physical custody.
This type of custody, basically, determines with whom the child lives. This parent is called a Residential Custodian. Of course, the other parent is allowed to use his/her visitation rights. Moreover, even the joint physical custody can be awarded to both parents if both of them spend a significant part of the time with their child. The "shared parenting" doesn't require to split the parenting time 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 about their child, besides alternate weekends etc it is always welcomed by the court.
Rules for Spousal Support in New Mexico
In New Mexico, a spousal support can be awarded to either spouse who can prove that a certain amount is really need to be payed, and that the other spouse has a financial capacity to pay it. There is no any strict formula to calculate an amount of a 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 a spousal support in New Mexico:
- Transitional alimony.
It is a short-term payment established to help the spouse with the lower income to “recover” after the divorce (to find a job, to review the family budget or smth like that).
- 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 a self-sufficient person.
- Long-term alimony.
The long-term spousal support can be awarded for a whole life. It is a very rare type of alimony, and you must have really convincing reasons to claim it. Typically the long-term alimony is awarded after the long-term (over 20 years) marriages.
Division of Property in New Mexico
All the family property can be determined as separate or marital. Separate property is all that belonged to the spouses prior to marriage. It is not subject to division during the divorce proceeding. In opposite, marital property includes everything was earned and acquired during the marriage.
New Mexico is one of the community property states, which means that all the marital property must be divided equally between the spouses. It's no matter whose name the property is in, or who contributed more.
Division of Debt in New Mexico
The debts are officially considered to be the part of a property. It is may be very hard to accept, but according to the community property rules, it is also split between two spouses 50/50. If the debts were collected during the married life it is no matter who caused it.
Divorce Mediation in New Mexico
Divorce mediation is a modern and popular way to overcome some marital differences. During the mediation session, the spouses meet to negotiate about the most essential terms of their separation under the guidance of an experienced mediator.
The mediator is also kind of a buffer between two parties, this specialist is neutral and eager to help the couple to reach an agreement. Unlike the court trial, as a result of a successful mediation, both spouses must be winners.
Notice, that the New Mexico Law insists the divorce mediation be the first step to take during the divorce proceeding. All the cases should be resolved peacefully if it’s possible, and the litigation should be the last resort, in case if mediation failed.
How to Divorce a Missing Spouse in New Mexico
If the filing spouse (the Petitioner) cannot locate his/her partner to deliver the divorce paperwork, "the Service by publication" can take place.
Being in such a situation you should, first of all, make a diligent search of your spouse in order to prove to the court that the partner is really missed. You must gather all the evidence of these efforts and submit it to the court with a special affidavit. If the court is satisfied with your search work, it may allow you to publish the notice about your case in a local newspaper. This notice must be published once a week for 4 weeks.
Once the notice is published you should confirm it by filing the Affidavit of Publication with the court. After that, if your spouse is still silent, the default judgment can be entered against him/her.
Default Divorce in New Mexico
Default divorce means finalizing the divorce case without a participation of one of the parties.
The mentioned above case with a missing spouse is one of but not the only cause to file for a default divorce.
In New Mexico, no one can force you to remain married. Officially, the one spouse’s desire to divorce is enough to do it. At the same time, it’s reasonable and just that you must give your partner the chance to respond or to contest the case if he/she want to.
So anyway, you must serve your spouse with a divorce paperwork, but if he/she refuses or fails to answer within 30 days you can ask for a default divorce. In order to do it 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 the Marriage in New Mexico
An annulment is quite similar to divorce, but instead of ending a legal marriage, it declares the marriage illegal and prohibited from the very beginning. It may be principal for some people, for their specific reasons, not to have a divorce history or smth like that. Also, you can ask for annulment only under the certain grounds and be ready to prove them:
- Underage marriage (under 18 y.o. or at least 16 but without a consent for the marriage).
- Consent to marriage obtained by duress or fraud.
- Mental incapacity.
Legal Separation in New Mexico
In New Mexico, Legal separation is one more way of how to terminate the marriage. To file for a legal separation the spouses must live apart constantly, but actually, the legal separation is much more than the termination of cohabitation.
Legal separation is very similar to divorce. The spouses divide their assets, property, and debts, split the custody and arrange the children/spousal support under this procedure. There is a “Separation agreement” they need to make and sign to solve all these issues. But - officially they are still married. And regardless of how long the spouses live apart, they still cannot 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 is recognized in New Mexico since 2013 (2 years before the Supreme Court ruling) and even earlier in some counties of the state. But even when the same-gender marriages were allowed in some areas, not everyone could file for divorce. Due to the residency requirements for divorce, some people who one day came to another state specifically to marry had to move to that state for a required time just to get a divorce. Now, when the same-sex marriage is a nationally recognized, the same-sex divorce is all the same as a straight divorce, and you don’t need to get a divorce in the place where you got married. LGBT couples have the same rights and should meet the same requirements for the procedure.
Military Divorce in New Mexico
In New Mexico, like the other states, all the military members can get a divorce in the state where they are stationed, and all of them are protected from the default judgment by the Soldiers and Sailors Civil Relief Act. That means that the divorce proceeding may be delayed for the whole time a military spouse is on active duty plus additional 60 days after that, in order, the military spouse could use their right to contest the divorce or to express their terms. Surely, any duty member can waive this opportunity if he/she is OK with uncontested or even default divorce. He/she must be personally served with a divorce paperwork unless he/she files 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 and if your spouse is in jail it shouldn’t be a problem to locate him/her at least . Also, in the case of uncontested divorce there is no any mandatory court hearing in New Mexico, so 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 money and not to submit a lot of personal information about the financial condition and so on.
New Mexico Divorce Filing Fee
A filing fee is a payment that covers the cost of the court system. At the same time, it can be called a start price for the simplest divorce case. This is a mandatory fee which is charged when you file for divorce with the court whether you contest your case or not, whether you arrange a DIY divorce or litigate with the help of an attorney.
In New Mexico, an average filing fee is between $135and $150, so it can slightly vary by the county.
Can a Filing Fee Be Waived?
Yes, a filing fee can be waived for indigent people fully or partially depending on district.
To waive the filing fee the person must file the Application for Free Process (Form 4-222) and an Order for Free Process (Form 4-223). The District Court Judge considers the information about income and financial condition provided with these forms and makes a decision to give a right for free process.
How We Can Help
We can prove to you that the dissolution can be calm and easy. We need some data about your uncontested case to prepare the correct relevant packet of the divorce paperwork. The forms will be customized for your county rules and case specificity, and they will be definitely approved by the court on the first try. Our "divorce packet" costs only $149, and we offer some additional services like qualified online-support.
Please contact us to know more about uncontested divorce in New Mexico. We’re in touch!
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