NM District Court Self Help Guide, July 2016 Page 1 of 29

The most current version of this guide is available at: https://self-help.nmcourts.gov/self-help-guide.aspx

NEW MEXICO

DISTRICT COURT

SELF HELP GUIDE

Rev. July 2016

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The most current version of this guide is available at: https://self-help.nmcourts.gov/self-help-guide.aspx

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The most current version of this guide is available at: https://self-help.nmcourts.gov/self-help-guide.aspx

This information guide is general in nature and is not designed to give legal advice. The court does not guarantee the

legal sufficiency of this information guide or that it meets your specific needs. Because the law is constantly changing,

this guide may not be current. Therefore, you may wish to seek the advice and assistance of an attorney.

WHO THIS GUIDE IS INTENDED TO HELP

This guide is intended to help individuals who are representing themselves, either as a plaintiff/petitioner or a

defendant/respondent in a civil lawsuit or a domestic matter filed in a New Mexico State District Court.

This guide is intended to be an informative and practical resource guide to understanding the basic practices of

the court and the most common procedures encountered by people representing themselves without a lawyer

(known as “self-represented litigants” or “pro se litigants”). It IS NOT a substitute for legal advice; it will not

answer all your questions about what you need to do to represent yourself.

A WORD OF WARNING

Because the law is constantly changing, the court does not guarantee the legal sufficiency of this information

guide nor does it guarantee that it meets your specific needs. If you represent yourself in a court case, you are

acting as your own lawyer. That means you are expected to know and follow the law and court rules. The

GETTING HELP

Court employees are not lawyers and cannot tell you what you should do or how the law applies to your

situation. Read more about what court employees can and cannot do at Rule 23-113 NMRA.

Some courts have a resource center where court employees can help you with court procedures. They cannot

give you legal advice. Check with your local district court to see what services are available to you.

While some courts offer packets of forms for certain kinds of court cases, there are not forms for every issue.

Look for forms on the New Mexico Supreme Court website at https://nmsupremecourt.nmcourts.gov or check

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ABOUT NEW MEXICO’S LAWS, RULES OF PROCEDURE, LOCAL RULES AND FORMS

As a person representing yourself, you should be familiar with the laws (called “statutes”), rules, local rules,

and forms that govern or must be used in your court case. But, court employees cannot help you with this. New

Mexico laws, rules, and forms are referred to using a very specific format. You will see four common formats in

this guide.

For New Mexico Laws (Statutes) the format looks like this: Section 40-8-1 NMSA 1978

For New Mexico Rules of Procedure, the format looks like this: Rule 23-112 NMRA

For Local District Court Rules, the format looks like this: LR1-306 NMRA

Mexico state statutes, rules, and forms on the New Mexico Compilation Commission’s public access website.

The New Mexico Compilation Commission is the official legal publisher for the State of New Mexico.

Directions for how to find and navigate the Compilation Commission’s public access website can be found at

the end of this section of the guide (page 6).

STARTING A COURT CASE

The pleading that starts a court case is called a “complaint.” Depending on the type of case, this first pleading

can also be called a “petition” or an “application.”

SERVING THE COMPLAINT

Each defendant must be notified that a lawsuit has been filed against them through a process that is specified

under the law. Whether you are trying to serve a person, a business or a governmental agency, this can be a

complicated process. Please read Rule 1-004 NMRA carefully for the steps to follow when serving a complaint.

Even if you can’t find the defendant, you still have to serve them. You may have to ask the court for permission

to publish a notice in the newspaper by using New Mexico Supreme Court approved Forms 4-209 and 4-209A

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ANSWERING A COMPLAINT THAT HAS BEEN FILED AGAINST YOU

It is important to file an “Answer” to the Complaint within 30 days from the date you are served. The date you

are considered served with the Summons is determined by Rule 1-004 NMRA. Otherwise, the plaintiff can ask

the court for a judgment against you without you knowing anything is happening.

An “Answer” is a pleading. There are New Mexico Supreme Court approved Answer forms available for

divorce and civil cases. Some courts offer a packet with the form used to answer a complaint; check with your

local district court for more information.

There is no fee to file an Answer.

TALKING DIRECTLY TO A JUDGE, HEARING OFFICER, OR THEIR STAFF

The judge’s or hearing officer’s personal staff – the Trial Court Administrative Assistant – can answer questions

about scheduling but cannot give legal advice or tell you how a judge will rule on your case.

MONITORING THE PROGRESS OR STATUS OF YOUR CASE

The clerk’s office maintains a computerized “register of actions” for each court case. Every time something

happens in your court case, whether you file a pleading, have a court hearing, or the court enters an order, it is

added to the register of actions in your case. You can look up the register of actions at any time at

www.nmcourts.gov. Select “On-Line Case Lookup” and follow the directions.

FILING MOTIONS

be necessary for you to send a copy of the motion directly to the judge so the judge will know it has been filed.

Read the local rules for your district carefully to determine how and when to send the motion to the judge.

TRIAL

You are entitled to a jury trial in many, but not all, types of lawsuits. If you are entitled to a jury trial, you must

ask for one in writing and pay a jury fee. Read Rule 1-038 NMRA for more information about asking for a jury

trial.

How to ask for a Hearing:

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the Local Rules or with your local district court for more information.

addition to the Request for Hearing.

Rescheduling a Hearing:

hearing to another date and time.

file a motion; some even have a packet specifically designed to ask for a continuance. Check with your

local district court for more information.

security check, and find the courtroom. If you are not in the courtroom when your case is

court, park, and find the courtroom. Go and see what the courtroom looks like. Go to a court hearing to

A “court order or judgment” is the judge’s instructions telling someone what they can or cannot do.

order or judgment. Most courts do not create this paperwork for you. If you are instructed to create the court

order or judgment, you may need to hire a lawyer to create one for you.

Enforcing an order – some courts offer a packet of forms needed to ask a judge to enforce a court order. Check

with your local district court for more information.

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IF YOU HAVE A DISABILITY

If you have a disability and need assistance, notify the court as soon as possible before any hearing or trial.

IF YOU NEED AN INTERPRETER

The court provides an interpreter in any language for free at court hearings or trials.

You are responsible for notifying the court that you need an interpreter, so make sure you reserve an interpreter

in advance of any hearing or trial.

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The New Mexico Compilation Commission publishes the statutes, court rules and forms online for public use at

the public access site located at: http://public.nmcompcomm.us/nmnxtadmin/NMPublic.aspx

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If you are starting a court case for kinship guardianship, use this form:

If the parents agree to the kinship guardianship, each parent fills out one of these forms. Pick the form that best

fits your situation:

(paternity admitted)

(paternity not admitted)

The judge will need one of these forms. Pick the form that best fits your situation:

Courts also require a form that asks the judge to schedule a court date (called a “hearing”). You will have to

provide a request for hearing form and notice of hearing form. Ask your local district court for more

part of the fee waived. The court keeps the originals, stamps the copies and gives them back to you. One copy is

for you and one copy is for each parent.

Step 3: Serve your court papers – each parent must receive a copy of your court papers. This is called "serving"

your court papers. For more information about serving kinship guardianship papers, read Sections 40-10B-5 and

45-1-401 NMSA 1978. Even if you do not know where to find one or both parents, you still have to serve them

your court papers. You may have to ask the court for permission to publish a notice in the newspaper. Please

read Rule 1-004 NMRA carefully for more details.

One thing is very important – you do not serve these court papers on each parent; your job is to arrange for

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You should get a hearing on the petition between 30 and 90 days from when you filed the guardianship. If you

also request a temporary guardianship, you should have a hearing on that request within 20 days of filing it.

I THINK THIS IS AN EMERGENCY – CAN I GET GUARDIANSHIP RIGHT AWAY?

Under certain circumstances you may be able to file for guardianship on an emergency basis. Once you file for

guardianship then you can file for temporary guardianship. The judge may grant the motion for temporary

guardianship with or without a hearing. Use all the forms listed in “How Do I Become a Kinship Guardian”

plus:

days after service of the Petition. Read more at Rule 1-012 NMRA. Currently, there is no New Mexico Supreme

Court approved form available for a response to a kinship guardianship petition. You can answer each paragraph

in the petition. Check with your local district court to see if they offer a form.

If you do not file a response within the 30 days, a “Judgment by Default” may be entered against you. Read

more at Rule 1-055 NMRA.

Canceling the guardianship is called “revoking” the guardianship. You will have to prove to the judge that

You must serve your motion on the guardians and other parent. One thing is very important - you do not serve

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This information guide is general in nature and is not designed to give legal advice. The court does not guarantee the

legal sufficiency of this information guide or that it meets your specific needs. Because the law is constantly changing,

In New Mexico, the laws about changing a name are found under “Change of Name” in Sections 40-8-1

through 40-8-3 NMSA 1978.

In general, a name change is when someone changes their legal name to a different name.

Changing your name or a child’s name requires a court order.

First, the person or the child must be a resident of New Mexico.

If you are “14 years old or older,” you can file for a name change on your own.

Change.” In this guide, it is just called a “Notice.” This is a very important form because this is the form

the court uses to schedule a court date about your name change. A court date is called a “hearing”

out for the judge

Next, file your name change case:

require more than 1 copy; check with your local district court

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YES. In any name change case, the Notice must be published.

When you file your petition, some courts will write the court date on the Notice. Others wait and mail the

Notice to you. Check with your local district court for their procedure.

When you receive the Notice with the court date, you must publish the Notice in a newspaper in the county

where you live once a week for 2 weeks in a row. The newspaper will charge for this.

The newspaper will send you proof that it published the Notice.

File that proof at the court.

To get started, you will need at least these forms:

notice to the child’s non-signing parent or guardian. If the non-signing parent or guardian agrees to the

name change, they can sign a consent form. Otherwise, you must arrange delivery of a copy of the

Summons and Petition to the non-signing parent or guardian. This delivery is called “service.” One thing

is very important – you do not serve these court papers; your job is to arrange for someone else to do

this for you

require more than 1 copy; check with your local district court

it costs to file your forms. If your income is below a certain level, you may be entitled to a waiver of the

filing fee. This is called “free process.” Ask the clerk’s office at your local district court for more

information about free process

WHAT HAPPENS AFTER I FILE THE PETITION? DO I HAVE TO DO ANYTHING ELSE?

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PLUS, the “Notice” must be published.

When you file the petition, some courts will write the court date on the “Notice.” Others wait and mail the

“Notice” to you. Check with your local district court for their procedure.

When you receive the “Notice” with the court date, you must publish the “Notice” in a newspaper in the county

where your child lives once a week for 2 weeks in a row. The newspaper will charge for this.

The newspaper will send you proof that it published the “Notice.”

File that proof at the court.

Then you will be ready to go to the hearing.

where your child lives and ask the clerk to record the order. There may be a fee for this.

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This information guide is general in nature and is not designed to give legal advice. The court does not guarantee the

legal sufficiency of this information guide or that it meets your specific needs. Because the law is constantly changing,

vehicles, stocks and bonds, etc.). This property is called the “decedent’s estate.”

WHEN IS PROBATE NOT NECESSARY?

Probate is not necessary to transfer property that is not “titled,” such as personal items including furniture,

Probate is not necessary if the decedent has arranged for a non-probate transfer of titled property. Examples of

non-probate transfers are: real estate held as Joint Tenants, real estate with a recorded Transfer on Death Deed,

NO PROBATE REQUIRED FOR A “SMALL ESTATE”

using an “Affidavit of Successor in Interest” if:

At least 30 days have passed since the decedent’s death; and

No probate has been filed.

The affidavit must be signed by the person entitled to receive the decedent’s property and notarized.

The affidavit can be presented to banks to collect the decedent’s money and other institutions such as the Motor

Vehicle Division, to change title to the decedent’s vehicles.

NO PROBATE REQUIRED TO TRANSFER DECEDENT'S PRIMARY RESIDENCE TO SURVIVING

SPOUSE

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using an “Affidavit of Surviving Spouse” (read more at Section 45-3-1205 NMSA 1978) if:

At least 6 months have passed since the decedent’s death; and

No probate has been filed; and

The only item required to be transferred from the decedent’s estate is the decedent’s primary residence;

The decedent and spouse owned the residence as community property or the decedent left (by Will)

his/her interest in the residence to the spouse; and

The full value of the residence, as assessed for property tax purposes, does not exceed $500,000.

The affidavit must be signed by the surviving spouse and notarized.

WHERE AND WHEN TO FILE A PROBATE CASE

If probate is necessary, the probate case must be filed with the Probate Court in the county where the decedent

was domiciled (physically living) at the time of his/her death.

Note: In some cases, it may be necessary to file the probate case in District Court. The Probate Court will

inform you if this is necessary. If this is the case, you may wish to consult an attorney. That situation is beyond

the scope of this guide.

Probate Courts are designed to help non-lawyers with probate cases that do not need to be filed in District

Note: A probate case may be filed after the 3 year period for the limited purpose of transferring title to real

property from the decedent’s name to the decedent’s heirs. Read more at Section 45-3-108 NMSA 1978.

FILING A PROBATE CASE WITH A WILL

If the decedent left a valid Will, the person filing the probate case must submit the original Will and a certified

copy of the decedent’s death certificate to the Probate Court along with the necessary forms.

Instructions for filing a probate case with a Will are contained in probate Forms 4B-021 and 4B-022 NMRA.

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People who die without a Will are said to have died “intestate.” New Mexico has specific “Intestacy Laws” that

detail who can be appointed PR of the Estate, who is entitled to the decedent’s property, and the share of the

property each person receives.

A spouse has the highest priority for being appointed PR, followed by the decedent’s children. A person who

wishes to be appointed PR must have the written consent of all other people with the same or higher priority for

appointment.

The person filing the probate must submit a certified copy of the decedent’s death certificate and copies of the

written consent of other people with the same or higher priority for appointment, along with the necessary

When the Probate Court appoints a person to be the Personal Representative of the decedent’s estate, the court

gives the PR a document called “Letters Testamentary.” If the decedent died without a Will (intestate), the

document is called “Letters of Administration.” This document gives the PR the legal authority to transact

business on the decedent’s behalf.

The PR is responsible for:

Notifying all of the heirs of the decedent’s estate;

Gathering and inventorying the decedent’s assets;

Identifying and paying the decedent’s debts (to the extent that funds are available in the estate to do so);

The PR is not allowed to use funds from the estate for the PR’s personal benefit. But, the PR is entitled to fair

compensation from the estate for the time spent administering the estate (read more at Section 45-3-719 NMSA

1978). The PR should keep a written record of tasks performed and time spent. The PR may also use estate

funds to pay for costs of administering the estate (i.e. postage, filing fees, copies, etc.).

If the decedent’s estate includes real property (land, a house, a farm, etc.), the PR may need to execute a

“Personal Representative’s deed” in order to transfer the property out of the decedent’s name. Deeds can be

very tricky to properly draft and execute, so you may wish to hire an attorney for this portion of the probate.

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Caution: This guide does not cover appeals from magistrate, metropolitan or municipal court, which

have shorter deadlines than appeals from district court.

WHERE AM I APPEALING FROM AND WHERE SHOULD I APPEAL TO?

To decide where to appeal, you must first know which court you are trying to appeal FROM. If you are trying

to appeal FROM a decision of the MAGISTRATE, METROPOLITAN, or MUNICIPAL COURT, you will

appeal TO the district court. If that is your situation, there may be a separate information guide available from

the district court or Court of Appeals, you will eventually need to file most of your paperwork in the Court of

Appeals, which is the court that will decide your appeal.

Keep in mind that the New Mexico Court of Appeals has two offices – one in Albuquerque and one in Santa Fe.

You can mail your documents to the Court of Appeals at P.O. Box 25306, Albuquerque, NM, 87125-0306 or

P.O. Box 2008, Santa Fe, NM 87504. Or, you can file your documents in person at 2211 Tucker NE

Albuquerque, NM or 237 Don Gaspar, Santa Fe, NM. The Court of Appeals can be reached by telephone in

Albuquerque at 505-841-4618 or in Santa Fe at 505-827-4946.

WHO CAN APPEAL?

WHAT CAN I APPEAL?

In general, you may only appeal a final, written order or judgment from the court. An order or judgment is

considered final for purposes of appeal when it has decided all of the issues in the case and there is nothing left

for the court to do. Sometimes it is difficult to know if an order of the court is final for purposes of appeal. If

you appeal from an order that is not final and appealable, the appellate court may dismiss your appeal, but you

will not lose your right to appeal. Once a final, written order is filed by the trial court, you can file a new appeal

with the appellate court.

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WHEN SHOULD I APPEAL?

In general, you must file an appeal from the district court within 30 days after the court files the final, written

order in the case. In some cases, you may be able to get an extension of time from the district court to file your

appeal. It is very important that you file your appeal on time. If you file your appeal late, you may lose your

right to appeal forever. Because the deadline for an appeal is so important, you must be sure you understand

whether you are trying to appeal a decision FROM a lower court TO the district court or FROM the district

court TO the Court of Appeals because the time for filing each kind of appeal is different. Please see the section

headed “Where Am I Appealing From and Where Should I Appeal To?” for more information.

HOW DO I APPEAL?

In most cases, you begin an appeal by filing a “notice of appeal” in the district court. In some cases, you begin

your appeal by filing what is called a “petition for a writ of certiorari” in the New Mexico Court of Appeals.

You may contact the Court of Appeals for these forms or visit the Court of Appeals' website at

https://coa.nmcourts.gov to download and print the forms yourself.

In general, you use a notice of appeal to appeal a decision of district court that started in the district court, and

the notice of appeal is filed with the district court itself. But if your case started in an administrative agency and

then was appealed to the district court, you use a petition for a writ of certiorari to appeal the district court's

court clerk's office and work with them to get the record proper prepared and sent to the Court of Appeals. The

“record proper” is the term used for an official copy of all the documents that were filed with the district court

clerk's office. It will also cost you some money to have the record proper prepared, and the amount will depend

on the size of the record proper. The district court clerk will notify you of the cost, which must be paid in 10

days.

After the record proper is filed in the Court of Appeals, the court will begin to consider your appeal. You will

then receive notice from the appellate court telling you what you must do next.