In New Mexico, there is no difference in the steps necessary to obtain a legal separation as a divorce. Unlike some states, you do not need to obtain “legal separation” before you can get a divorce. Just living in separate households or no longer having intimate relations does not mean you are “legally separated”. That status requires a court order. NM Divorce & Custody Law, LLC can help you to navigate your divorce or legal separation matters.
“Dissolution of Marriage” is just another way of saying divorce. Lawyers like technical terms, and when two people get divorced, they are dissolving the marriage. Once the judge signs the Final Decree of Dissolution of Marriage, the spouses are no longer married to each other and they are officially single. They can then marry someone else.
If the spouses no longer wish to live together and they want to make legally enforceable agreements on how to divide their property and debts, or how they will raise the children, they can do this by obtaining a legal separation without getting divorced. However, in New Mexico, you go through the same exact court process and deal with the same exact issues (property, debt, children, and alimony) in a legal separation as a dissolution of marriage, except at the end, you are still technically married to each other and cannot marry someone else.
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In New Mexico, the grounds for divorce is “incompatibility,” which the statute defines as a situation “which exists, because of discord or conflict of personalities, the legitimate ends of the marriage relationship are destroyed preventing any reasonable expectation of reconciliation.” You do not have to live apart before or during the divorce case, but generally, there comes a point in time when it is too uncomfortable to continue to live under the same roof.
Incompatibility is also referred to as a “no-fault” divorce grounds. Nobody has to prove you no longer get along. The Petitioner (the person who files to open the divorce case with the court) just has to state, in essence, “I want a divorce on the grounds of incompatibility.”
There are still three “fault” grounds on the law books, but our lead attorney has not seen a divorce go through on such grounds in over 30 years in practice. "Fault" is adultery, abandonment, or cruel and unusual treatment. Trying to prove fault grounds doesn’t change any of the other laws about property and debt, alimony, and the children – it just makes the divorce more complicated, expensive, time-consuming and emotionally draining.
The Four Main Topics Addressed in Divorce or Legal Separation
In general, every divorce or legal separation in New Mexico must address the following:
By addressing these topics, your dissolution of marriage will be finalized once an agreement on each has been reached.
Property Division in Bernalillo County
Property must be identified, characterized (as “separate” or “community”) and divided between the spouses. “Real property” consists of real estate that has a deed, such as a house, condominium, townhouse, land, mineral rights and water rights. “Personal property” is pretty much everything else such as vehicles, motorcycles, boats, RVs, livestock, etc. – things that normally have a title – as well as personal possessions like clothing, appliances, electronics, jewelry, artwork, collectibles and more. As difficult as it is to think of our pets as "personal property," that's what they are considered under the law, and they can be allocated in a divorce.
Before determining who will keep what, the property must be identified as either separate or community. The names on the deed or title are not definitive in saying whether the item is separate or community property.
Property you owned before you were married or that you received by gift or inheritance during the marriage is your separate property. The proceeds of separate property remain separate property. For example, if you owned a house before marriage and you rented it out while married, the rent money continues to be your separate property so long as you didn’t use the rent money to pay for community debts or to put toward purchasing community property. You have to be able to trace or otherwise show exactly what rent money came from the rental house.
All property acquired while married is presumptively community property, including retirement benefits that build up during the marriage. Income earned after the wedding is also considered community money, even if only one spouse is employed. The person claiming something as separate, or the proceeds of separate property, has the burden of proof.
Co-Mingled or Transmuted Property
Sometimes couples mix-up separate and community property so much that it cannot be traced. For example, the wife inherits $50,000. She deposits the money into a joint bank account with her spouse and they use the money to renovate the kitchen in the community property home, take a vacation with the money and pay off the spouse’s motorcycle loan. By doing this with the money, the wife has co-mingled her separate property inheritance with community expenses to the point where she probably transmuted the separate property into community property.
As a reverse example, the husband owns several acres of unimproved mountain property before marriage. Several years after the wedding, the couple decides to build a vacation cabin. They use their joint savings and obtain a bank loan for the construction. After the cabin is built, the loan is converted to a traditional mortgage. Both spouses are listed on the mortgage and the deed to the cabin (which also probably includes the underlying land). The loan is paid off during the marriage with wages earned by both spouses. Therefore, the land and the cabin are probably both now community property and community debt.
Debt owed before marriage is separate debt, and debt incurred after marriage is community debt. This area can get murky because many people have credit card debt before marriage that they continue to pay down after the wedding with income earned after marriage. The person’s name on the credit card is not conclusive as to whether the debt is separate or community. The more important factor is when the debt was incurred, before or after the marriage.
Student loans are usually considered separate debt, even if partially taken out after marriage. One exception is if part of the student loan was used for post-marriage living expenses, as opposed to paying only the tuition, books and other school fees. To the extent that you can prove the amount of the loan used for joint living expenses, that amount might be characterized as community debt.
The rules of court require the parties to exchange preliminary financial documents early on in a divorce or legal separation case. The documents show current income and the average of certain fixed monthly expenses.
These figures are inputted on a Monthly Income & Expenses Statement (I&E). The purpose of doing this threefold:
- To pool the money;
- To pay the allowed bills;
- To shift the presumption from community to separate property and debt for things purchased after entry of the Interim Allocation order.
Any money left after paying the allowed fixed monthly expenses gets split 50/50 between the husband and wife. The parent with whom the children spend the majority of time gets an additional percentage of the net combined income as “temporary” or “interim” child support. Essentially the goal of Interim Allocation (also called Interim Division) is to level the financial playing field while the divorce is taking place. When you have questions regarding Interim Allocation or Interim Division, an attorney at NM Divorce & Custody Law, LLC can help.
Let NM Divorce & Custody Law, LLC Help
Deciding to get a divorce or end your relationship with your partner is a hard choice to make. It can be a scary and complex process to go through in order to legally change your marital / relationship status. The lawyers at NM Divorce & Custody Law, LLC have decades of combined experience easing the legal pain of divorce or legal separation. We understand the process and can mediate terms of the divorce on your behalf and even act as a neutral settlement facilitator for both you and your spouse. Every relationship is unique. This is your divorce and your family.