2015
DIVORCE, SEPARATION
AND CHILD SUPPORT IN
NEW MEXICO
Holloman Legal Assistance
Program
Law Guide
Preventave Law Series
49 WG/JA
DISCLAIMER:
The informaon contained in this pamphlet is meant for the sole use of
acve duty members, rerees, their families, and other persons eligible
for Legal Assistance from the Holloman AFB, NM, 49 WG/JA Oce. The
informaon is general in nature and presented to assist eligible persons in
preparing for a Legal Assistance appointment with an aorney in the legal
oce. It is not an all-inclusive guide to federal or New Mexico law. It is
not a substute for legal advice from an aorney regarding individual
situaons. Rights and responsibilies vary widely according to the
parcular set of circumstances in each case. Laws can vary across states,
services, and civilian jurisdicons and laws are changed from me to me.
Do not rely upon the general statements of background informaon
presented here without discussing your specic situaon with an aorney
prior to taking any acon in court. (As of January 2009)
Introducon
Before deciding on a divorce or separaon, seek the help of a professional,
such as a chaplain, psychologist or marriage counselor. They may be able to
help you save your marriage by providing a forum for working through your
dicules. Even when counseling doesn't work, it helps lay the groundwork
for your post-divorce relaonship. The organizaons at Holloman AFB that
provide free counseling services for couples experiencing marital dicules
are:
The Base Chapel 572-7211
Family Support Center 572-7754
Mental Health 572-5676
Divorce, Legal Separaon and
Annulment
Divorce is the legal procedure which ends civil marriage. When a husband
and wife agree to the divorce terms, it is uncontested or amicable. If the
court thinks that one spouse does not agree to the divorce terms or doesn’t
want to divorce, the divorce is contested. In a contested divorce, the court
determines the appropriate alimony, child custody, and visitaon terms.
This process takes longer than uncontested divorces. If contested, each
spouse should hire an aorney. Contact the New Mexico Bar Lawyer Referral
Service (1-800-876-6227 or 505-797-6066) if you need help nding a lawyer.
Formal separaon, or legal separaon, is NOT a divorce. It is a court-
ordered arrangement for a husband and wife to live separately. Legal sepa-
raon is a temporary arrangement that oen precedes divorce. When one
party wants a separaon but the other party won’t sign a separaon agree-
ment, legal separaon is appropriate. A court acon may be led for separa-
on, support and maintenance if the spouses are permanently separated
and not living together. All of the issues resolved in a divorce such as custo-
dy, child support, alimony and property allocaon are also resolved in a legal
separaon. You can’t remarry while legally separated. Some spouses sepa-
rate informally live apart without court involvement. If you do this, consult
an aorney so you don’t lose certain property or child custody in a later
divorce case.
Annulment is dierent from both a legal separaon and divorce. Annul-
ment does not end a marriage. Rather, it says a marriage never legally exist-
ed. New Mexico grants annulments when one or both pares were under 18
or when the pares are close blood relaves.
New Mexico does not require noce to the courts if you have pri-
mary custody and leave the state with your children. You are re-
quired, however, to keep the child's other parent noed of the
child's whereabouts. It may be necessary to work out new visita-
on periods to accommodate the distances involved. Be reasona-
ble. It is in the best interest of your children that they have maxi-
mum contact with both pares.
Child Support
The New Mexico statutes provide a schedule that guides the court
in this decision. You can see the statute, NMSA §40-4-11.1, at
hp://www.nmlegis.gov/lcs/statutes.aspx. The amount of child
support is usually based upon this schedule unless there are unusu-
al circumstances which require the judge to order some lesser or
greater amount (such as a physically handicapped child that re-
quires specialized care). The monthly amount is determined by:
The monthly take home pay of both pares
Each pares' monthly living expenses;
Other bills and obligaons which either party is responsible for
paying;
The number of children, their ages and their parcular needs.
If one parent fails to pay support, the other parent is NOT entled
to deny visitaon rights. Likewise, if one parent wrongfully denies
visitaon, the other is not entled to withhold support. In addion,
you should consult with Finance about the requirements for receiv-
ing BAH at the with dependants rate aer your divorce.
To esmate child support payments, use the following site to
calculate: hp://www.nmcourts.gov/cgi/prose_lib/
Alimony, Support or Maintenance
New Mexico calls alimony spousal support. The purpose of spousal
support is to retain the standard of living the dependent spouse
enjoyed during the marriage. It can be awarded to either husband
or wife. Where both pares are employable and have similar earn-
ing capacity, spousal support is usually not awarded. New Mexico
sets no limit on spousal support awards. Support generally ceases
when the supported spouse remarries, NOT when the supporng
spouse remarries. Death of either spouse stops the support obliga-
on. Spousal support may be awarded for a "rehabilitave" period
to allow one party to nish his or her educaon or vocaonal train-
ing, or to allow adjustment to being a single parent. The factors
New Mexico courts consider in awarding spousal support are:
The age, health and needs of the spouses;
The duraon of the marriage;
The current and future earning capacies of the spouses;
The standard of living established in the marriage;
Good faith eorts to maintain employment or become self-
supporng;
Amount of property awarded to each spouse;
The nature of the spouses' assets and liabilies;
Income produced by property owned by each spouse; and
Any agreements between the spouses regarding divorce or
separaon.
Name Change
Aer a divorce, women oen wish to use a former last name or adopt a
completely new last name. The District Court that issues the divorce
decree will usually issue an order allowing a person to use a name which
is dierent than the person's married name. The woman must peon
(request) the court for a name change. In New Mexico, a person must
le noce before the peon. The noce of applicaon for a name
change must be led in a newspaper in the county where the divorce
was led and where the applicant lives at least once a week for two
consecuve weeks. The applicant must provide the court with proof of
publicaon of this noce. For more informaon, refer to the Change of
Name, available with other Prevenve Law Series handouts, in the 49 FW
Legal Oce.
Military Benets
MPF can answer quesons about military benets. AFI 36-3026(I) (20
Dec 02) Idencaon Cards for Members of the Uniformed Services,
Their Eligible Family Members, and Other Eligible Personnel governs
rights to base privileges. Military benets are ed to a military ID card.
Generally, the non-military spouse must turn in the ID card when the
divorce is nal and all benets cease. A former spouse is entled to an
ID card and commissary/BX privileges if she or he sases the 20/20/20
rule (married to military member during at least 20 years of member's
rerement-creditable service) and is not remarried. Former spouses
qualify for full medical benets if they sasfy the 20/20/20 rule, never
remarry, and are not covered by an employer-sponsored health insur-
ance plan. Family member children are always entled to military bene-
ts unl they turn 21. See the Uniformed Services Former Spouses'
Protecon Act pamphlet in our oce or ask a legal assistance aorney
for more informaon.
Your Lawyer's Role
A lawyer's duty in a domesc divorce case is to inform you of your rights
and obligaons and assist in negoang an equitable selement. If a
selement cannot be reached, your aorney's obligaon is to prepare
your case for trial and to represent your interests in court. The aorney
should advise you of all selement negoaons and whether a proposed
selement is equitable and in accordance with what the law provides. It
is best to have your aorney represent you in all negoaons with your
spouse. Never sign any documents without discussing them with your
aorney.
A lawyer should advise you whether legal separaon or di-
vorce is appropriate. Many issues arise aer divorce that people, in haste
to get out of their marriages, do not consider. For example, if you and your
spouse both leave the military, who will pay for health insurance for the
children? Boom line, it is best to consult a lawyer.
Grounds for Divorce and Legal Separaon
In New Mexico you must have a legally sucient reason to be divorced.
This reason is called the grounds for divorce. There are four statutory
grounds for divorce in New Mexico: incompability, cruel and inhumane
treatment, adultery, and abandonment. Incompability exists when dis-
cord or conict of personalies thwarts the legimate ends of marriage
and prevents reasonable expectaons of reconciliaon. In pracce, most
divorces are granted for reasons of incompability. The tesmony of
either party is sucient to establish incompability. Either party may
request a divorce without the consent of the other.
The only ground for legal separaon is when there has been a permanent
physical separaon of the spouses. Proceedings for division of property,
disposion of children or alimony may be instuted if pares are perma-
nently separated and no longer live together.
Residency and Costs
A New Mexico district court has jurisdicon to decree dissoluon of mar-
riage when at the me of the ling of the peon either spouse has (a)
resided in New Mexico for at least six months immediately preceding the
date of the ling, and (b) has a domicile in New Mexico.
In other words, to le for divorce, you must have lived here six months.
The ling fee for an uncontested divorce is $137 (money order or cash). If
the non-ling spouse doesn’t waive service of process, there may be a fee
for a process server to serve them. Any aorney’s fees would vary de-
pending on the case’s complexity.
Filing for Divorce
A couple may seek a divorce in New Mexico without the assistance of an
aorney if both agree to the terms of custody, property distribuon and
spousal support in the divorce decree. You must le specic forms with
the Clerk of the 12th Judicial District Court. You must le one original and
two copies. You can obtain these forms from the following four places:
Otero County Courthouse (575-437-7310)
1000 NY Avenue, Room 209
Forms cost $8-17. Packet B is for Uncontested Divorces w/
Children. Buying the forms from the courthouse is the
safest way to get all the right forms you need.
Alamogordo Public Library (575-439-4140)
920 Oregon Avenue, Alamogordo (copying fees apply)
NM Supreme Court Website,
hp://www.supremecourtlawlibrary.org/
An uncontested or amicable divorce will not be granted if there is disa-
greement among the pares on the terms in the divorce decree. If you
can’t agree on the terms of your divorce, then you need to hire a civilian
aorney. NOTE: An aorney can ethically represent only one spouse. If
both spouses want a lawyer, both have to hire one.
DIVORCE, SEPARATION AND CHILD SUPPORT IN NEW MEXICO
If there are children involved, New Mexico requires the parents to take a
parenng and educaon class. You can take a civilian class ($50) or one on
base (free). For on-base, contact Family Advocacy at DSN 572-7061. For o-
base, call (575) 443-1086. A divorce hearing will usually not be granted
unl both parents take the class. If you peon for a waiver of the class
requirement, the judge may grant it for good cause, such as your children
being 18.
Who Decides My Case?
A judge hears divorce, child support, and custody cases in New Mexico.
You may agree to a selement before trial through arbitraon or media-
on. You don’t need a lawyer for arbitraon or mediaon. Arbitraon is
informal and faster than court proceedings, but it’s not free. During the
divorce, pares may seek an arbitrator. Alternavely, the judge may ap-
point an arbitrator or special master to help with complex property divi-
sion. If the pares agree to be bound by the ndings of the arbitrator,
those ndings become part of the nal divorce decree. Mediaon is com-
monly used in conjuncon with arbitraon to narrow areas of dispute. The
mediator visits each party separately in an aempt to nd common ground
between them
While you may agree to custody, visitaon and support, the judge ulmate-
ly determines what is in the best interests of the child and the competency
of the parents. If he thinks it’s in the best interests of your children, the
judge will prefer to adopt the agreement you made with your spouse.
Reach an agreement with your spouse if you can since it’s easier to live
with agreements you make than with the decisions a judge makes for you.
Property Distribuon
Community Property is property acquired by either or both spouses
during marriage which is not separate property. Each spouse has a 50%
ownership interest in all community income or community assets acquired
during marriage. Upon divorce, the court divides the property in a way it
deems fair and equitable, preferably by dividing it y-y if fair. If an
equal dissoluon would prove unfair to one party, the court in its discreon
may consider all relevant facts and circumstances to arrive at an equitable
dissoluon. There is a rebuable presumpon that property acquired
during marriage is community property.
Separate Property is all property that each spouse owned
prior to the marriage. It also includes all property inherited by one spouse
as well as gis made to one spouse during the marriage. The law requires
that separate property be idened and its separate character maintained.
If such idencaon cannot be proved then the evidence of separate prop-
erty is insucient to rebut the presumpon of community property.
To determine whether property is community or separate,
examine when the property was acquired. If it was acquired before mar-
riage, it is that spouse's separate property. However, there may be some
reimbursement issues. For example, a spouse who was purchasing a vehi-
cle before he got married and thereaer used community property to
make payments on the vehicle, may have to reimburse his ex-spouse for a
poron of those payments. You should address these issues with your
aorney. The law requires both pares to make a complete disclosure of
all assets and to account for any assets disposed of during the separaon.
Property agreements or court-ordered distribuons of
assets usually address division of liability, alimony, health insurance,
life insurance, child support, visitaon, medical insurance, medical
expenses and college costs. Property selements and spousal support
awards are interdependent, so an increase in one may cause a de-
crease in the other. You can ask the court to approve the property
selement agreement which you and your spouse made. The court
usually approves your agreement if it is fair.
The division of personal property (personal eects) is sub-
ject to great misunderstanding and disagreement. Each party is en-
tled to his or her own personal belongings such as clothing, jewelry
and personal eects. When you believe the separaon is going to be
permanent, it is wise to have the personal property divided and ex-
changed. Failure to do so may lead to misunderstandings over de-
stroyed, damaged or misplaced items.
Community Debts
Both spouses are liable for community debts. There’s a presumpon
that all debts incurred during the marriage are community debts.
Generally, one spouse may incur a community debt even though the
other spouse does not parcipate in the transacon. A separate debt
is formed during marriage when the creditor has actual knowledge
before the transacon that the debt is a separate debt. The pares
may agree as to the allocaon of responsibility for the debts, or the
court will allocate them in accordance with law. Creditors, however,
may not be bound by the pares' or courts' allocaon of responsibility
and may choose to seek payment from the former spouse in event of
default. You should supply your aorney with a complete and accu-
rate list of all obligaons.
Custody of Children
Custody is one of the most dicult decisions a couple faces during
divorce. The New Mexico courts usually recognize a custody agree-
ment between husband and wife. If they cannot agree, and the child
is under 14, the court will award custody under the "best interests of
the child" standard. If the child is 14 or older, the court will consider
the child's wishes regarding custody before making the custody award.
In pracce, New Mexico courts award joint legal custody with physical
custody to the parent best able to meet the child's physical, emoonal
and other needs. The idea is to maximize the child's contact with each
parent consistent with schooling and the emoonal need for a stable
home life. In determining whether joint legal custody is in the child's
best interest, the court will consider (this list is not all-inclusive):
The wishes of the child's parent or parents as to custody;
The wishes of the child as to custodian;
The interacon and interrelaonship of the child with parents,
siblings and any other person who may signicantly aect the
child's best interest;
The child's adjustment to home, school and community;
The mental and physical health of all individuals involved;
Geographic distance between the parents; and
Willingness or ability of the parent to communicate, cooperate or
agree on issues regarding the child's needs.
