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New Mexico Divorce Laws
Residency and Filing Requirements:In order to file for a dissolution of marriage in New Mexico, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
The district court has jurisdiction to decree a dissolution of marriage when at the time of filing the petition either party has resided in this state for at least six months immediately preceding the date of the filing and has a domicile in New Mexico. The petition is to be filed in the county in which either spouse reside.
Persons serving in any military branch of the United States government who have been continuously stationed in any military base or installation in New Mexico for such period of six months shall, for the purposes hereof, be deemed to have a domicile of the state and county where such military base or installation is located. (New Mexico Statutes - Article 4 - Sections: 40-4-5)
Grounds for Filing:The Petition for Dissolution of Marriage must declare the appropriate New Mexico grounds upon which the dissolution of marriage is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The dissolution of marriage grounds are as follows:
A district court may decree a dissolution of marriage on any of the following grounds:
2. cruel and inhuman treatment;
3. adultery; or
(New Mexico Statutes - Article 4 - Sections: 40-4-1, 40-4-2)
Filing Spouse Title:Petitioner. The Petitioner is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Respondent. The Respondent is the spouse who does not file the initial dissolution of marriage papers, but rather receives them by service.
Court Name:State of New Mexico, In the District Court, __________ County. This is the New Mexico court where the dissolution of marriage will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Petition for Dissolution of Marriage and Decree of Dissolution of Marriage. These are the essential documents needed to start and finalize a dissolution of marriage according to New Mexico law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Domestic Relations Information Sheet, Appearance, Waiver and Consent, Financial Affidavit, Parenting Plan and Child Support Obligation, and Affidavit Concerning Child Custody.
Court Clerk's Title:District Clerk's Office. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:New Mexico is a "Community Property" state. Community property is all property that was acquired during the marriage. This property will be divided equally (50-50) by the court if the parties are not able to come to an agreement.
Each spouse retains his or her separate property that was acquired prior to the marriage. Separate property can be classified or defined as follows: (1) property acquired by either spouse before marriage or after entry of a decree of dissolution of marriage; (2) property acquired after entry of a decree; (3) property designated as separate property by a judgment or decree of any court having jurisdiction; (4) property acquired by either spouse by gift, bequest, devise or descent; and (5) property designated as separate property by a written agreement between the spouses, including a deed or other written agreement concerning property held by the spouses as joint tenants or tenants in common in which the property is designated as separate property.
The "Community Property" acquired by either or both spouses during the marriage, which is not separate property, is divisible upon the termination of the marriage. (New Mexico Statutes - Article 4 - Sections: 40-3-8, 40-4-7)
Restoration or Name Change:Any resident of this state over the age of fourteen years may, upon petition to the district court of the district in which the petitioner resides and upon filing the notice required with proof of publication, if no sufficient cause is shown to the contrary, have his name changed or established by order of the court. The parent or guardian of any resident of this state under the age of fourteen years may, upon petition to the district court of the district in which the petitioner resides and upon filing the notice required with proof of publication, if no sufficient cause is shown to the contrary, have the name of his child or ward changed or established by order of the court. When residents under the age of fourteen years petition the district court for a name change, the required notice shall include notice to both legal parents. The order shall be entered at length upon the record of the court, and a copy of the order, duly certified, shall be filed in the office of the county clerk of the county in which the person resides. The county clerk shall record the same in a record book to be kept by him for that purpose. (New Mexico Statutes - Article 4 - Sections: 40-8-1)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
If the parties have not come to an agreement regarding the spousal support, on final hearing, the court may do the following: (1) may allow either party such a reasonable portion of the spouse's property or such a reasonable sum of money to be paid by either spouse either in a single sum or in installments, as spousal support as under the circumstances of the case may seem just and proper, including a court award of: (a) rehabilitative spousal support ; temporary spousal support; or permanent spouse support.
When making determinations concerning spousal support to be awarded, the court shall consider: (1) the age and health of and the means of support for the respective spouses; (2) the current and future earnings and the earning capacity of the respective spouses; (3) the good-faith efforts of the respective spouses to maintain employment or to become self-supporting; (4) the reasonable needs of the respective spouses, including: (a) the standard of living of the respective spouses during the term of the marriage; (b) the maintenance of medical insurance for the respective spouses; and (c) the appropriateness of life insurance, including its availability and cost, insuring the life of the person who is to pay support to secure the payments, with any life insurance proceeds paid on the death of the paying spouse to be in lieu of further support; (5) the duration of the marriage; (6) the amount of the property awarded or confirmed to the respective spouses; (7) the type and nature of the respective spouses' assets; provided that potential proceeds from the sale of property by either spouse shall not be considered by the court, unless required by exceptional circumstances and the need to be fair to the parties; (8) the type and nature of the respective spouses' liabilities; (9) income produced by property owned by the respective spouses; and (10) agreements entered into by the spouses in contemplation of the dissolution of marriage or legal separation. (New Mexico Statutes - Article 4 - Sections: 40-4-7)
Child Support:New Mexico child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent's income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2's and child support worksheets are available at the courthouse.
Every decree or judgment of child support that deviates from the guideline amount shall contain a statement of the reasons for the deviation.
The purposes of the child support guidelines are to: (1) establish as state policy an adequate standard of support for children, subject to the ability of parents to pay; (2) make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; and (3) improve the efficiency of the court process by promoting settlements and giving courts and the parties guidance in establishing levels of awards.
The child support may also include, beyond the amount determined by the guidelines, the payment of the following expenses not covered by the basic child support obligation: (1) any extraordinary medical, dental and counseling expenses incurred on behalf of the children of the parties. Such extraordinary expenses are uninsured expenses in excess of one hundred dollars ($100) per child per year; (2) any extraordinary educational expenses for children of the parties; and (3) transportation and communication expenses necessary for long distance visitation or time sharing. (New Mexico Statutes - Article 4 - Sections: 27-2-27, 40-4-7, 40-4-11)
Child Custody:When minor children are involved in a dissolution of marriage, the New Mexico courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
In any case in which a judgment or decree will be entered awarding the custody of a minor, the district court shall, if the minor is under the age of fourteen, determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including, but not limited to: (1) the wishes of the child's parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parents, his siblings and any other person who may significantly affect the child's best interest; (4) the child's adjustment to his home, school and community; and (5) the mental and physical health of all individuals involved.
If the minor is fourteen years of age or older, the court shall consider the desires of the minor as to with whom he wishes to live before awarding custody of such minor. (New Mexico Statutes - Article 4 - Sections: 40-4-9, 40-4-9.1)
Copyright Notice: The above synopsis of New Mexico divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
According to New Mexico divorce laws, a premarital agreement must be in writing, signed by both parties and acknowledged. A premarital agreement may not adversely affect the right of a child or spouse to support, a party's right to child custody or visitation, a party's choice of abode or a party's freedom to pursue career opportunities. It is not enforceable if the party against whom enforcement is sought proves that he or she did not execute the agreement voluntarily and the agreement was unconscionable when it was executed.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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