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New Mexico divorce recovery

New Mexico Divorce Forms

Y ou may do your own search for divorce forms Child custody strategies(just below), or you can select one of the featured forms. When you click on a form link, you will see:

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  • New Mexico laws that are related to that form
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You will get ONE shot
at winning custody – Learn How Here

Annulment

A  marriage annulment renders a Annulmentmarriage void, illegal and should never have taken place. The process of getting an annulment is similar to divorce and separation in that one petitions the court and serves the other party. Annulments tend to be more difficult to obtain because one must prove conditions for annulment existed during the marriage ceremony or subsequent to that. Grounds include:

  • Fraud – If your spouse has married you by employing fraud or misrepresented him or herself
  • Physical Disability – you can file for annulment if your spouse has some physical disability and it is adversely bearing on your marriage
  • Duress – If you were threatened or forced into a marriage
  • Mental Incapacity – annulment is permitted if your spouse is mentally ill and it is adversely affecting your married life.

[New Mexico Statutes - Article 4 - Sections: 40-1-7, 40-1-9.1]

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Child Custody

T here is a presumption that joint Child custodycustody is in the best interest of the child in an initial custody determination, although not necessarily an equal division of financial responsibility for the child. Courts in this state won’t substitute joint custody for an existing custody arrangement unless there has been a substantial change in circumstances since the entry of the prior order.

The court will approve one of the following custody arrangements:
  • Legal custody – is awarded to one or both parents, providing the right and obligation to make important (legal) decisions regarding in a child in education, religious instruction and health care matters
  • Sole legal custody – – only one parent is granted the right and obligation to make important (legal) decisions regarding in a child in education, religious instruction and health care matters
  • Joint legal custody – the child lives with each parent, dividing his or her time between two homes. Each parent has the right to make day-to-day decisions for the child while in their care. Parents with joint physical custody often have joint legal custody, which mean each have the right to make major decisions for the child while in that parent’s care
  • Physical custody – the child with only one parent and the other parent is granted specific visitation rights throughout the year
  • Sole physical custody – – a child lives with you and not the other parent. This is often referred to as primary caretaker, or the person who has responsibility for day-to-day care of a child. If the other parent is granted visitation, that parent is the secondary caretaker
  • Joint physical custody – the child lives with each parent for a substantial amount of the year, but not necessarily a 50/50 split of time. This custody form is rarely granted, partly because it takes the parents putting aside their differences to make sound decisions for the child. It also requires closely adhering to a schedule.
Want to read what we consider to be the Best Guide On Custody Matters?
The guide is FREE, written for Dads, but Moms should read this too. Before you go into battle, be sure you have the right defensive and offensive tools. Do not get surprised or blindsided. Study the Guide, own an online Parenting Plan and you should be covered for anything they throw at you
In consideration for joint custody, the court will consider the following factors:
  • Whether the child has established a close relationship with each parent
  • Whether each parent is capable of providing adequate care for the child throughout each period of responsibility
  • Whether each parent is willing to accept all responsibilities of parenting, including the willingness to accept care of the child and to relinquish care to the other parent
  • Whether the child can best maintain and strengthen a relationship with both parents
  • Whether each parent is able to allow the other to provide care without intrusion
  • The suitability of a parenting plan for the implementation of joint custody
  • Geographic distance between the parents’ residences
  • Willingness or ability of the parents to communicate cooperate and agree on issues regarding the child’s needs.
  • Any acts of domestic abuse against the child, the parent or other person seeking custody.

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If one parent is involved in domestic violence

When the non-custodial parent has been found to be Custody issuesa perpetrator of domestic violence but is still eligible for visitation, the court may order remedies to ensure safety of a child, the child’s other parent, or siblings. The court may:

  • Order the parent into a safe exchange and supervised visitation program
  • May employ or contract with a person with whom a child may be left by one parent for a short period waiting to be picked up by the other parent
  • Supervised visits among one or both parents and the child
  • Order one or both parents to pay the costs of any safe exchange and supervised visitation program

State laws provide that if the minor is fourteen years of age or older, the court will consider the desires of the minor as to with whom he wishes to live before awarding child custody of such minor. Whenever testimony is taken from the minor concerning his choice of custodian, the court will hold a private hearing in his chambers. The judge will have a court reporter in his chambers who will transcribe the hearing; however, the court reporter will not file a transcript unless an appeal is taken.

You will get ONE shot at winning custody – Learn How Here

An award of joint custody means
  • each parent will have significant, well-defined periods of responsibility for the child;
  • each parent will have, and be allowed and expected to carry out, responsibility for the child’s financial, physical, emotional and developmental needs during that parent’s periods of responsibility;
  • the parents must consult with each other on major decisions involving the child before implementing those decisions; that is, neither parent may make a decision or take an action which results in a major change in a child’s life until the matter has been discussed with the other parent and the parents agree. If the parents, after discussion, cannot agree and if one parent wishes to effect a major change while the other does not wish the major change to occur, then no change will occur until the issue has been resolved
The following guidelines apply to major changes in a child’s life
  • if either parent plans to change his home city or state of Care for childrenresidence, he will provide to the other parent thirty days’ notice in writing stating the date and destination of move
  • the religious denomination and religious activities, or lack thereof, which were being practiced during the marriage should not be changed unless the parties agree or it has been otherwise resolved
  • both parents will have access to school records, teachers and activities. The type of education, public or private, which was in place during the marriage should continue, whenever possible, and school districts should not be changed unless the parties agree or it has been otherwise resolved
  • both parents will have access to medical and dental treatment providers and records. Each parent has authority to make emergency medical decisions. Neither parent may contract for major elective medical or dental treatment unless both parents agree or it has been otherwise resolved
  • both parents may attend the child’s public activities and both parents should know the necessary schedules. Whatever recreational activities the child participated in during the marriage should continue with the child’s agreement, regardless of which of the parents has physical custody. Also, neither parent may enroll the child in a new recreational activity unless the parties agree or it has been otherwise resolved

Will the Ex manipulate you with the kids’ schedule?

[New Mexico Statutes - Article 4 - Sections: 40-4-9, 40-4-9.1]

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Do It Yourself Divorce

A s a New Mexico resident, you have DIY Divorceto demonstrate residency before you can file for divorce in this state. Residency is established if you or your spouse have lived here for at least 6 months immediately preceding the filing.

The spouse who begins the process (the Petitioner) must file with the District Court in either the Petitioner’s or Respondent’s county a Petition for Dissolution of Marriage. The Petitioner has to select this form from the correct packet of forms (with children or without, with assets or without, service by mail or in person, etc.). Review the divorce packets here.

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By law, you are responsible for notifying (serving) your spouse using a copy of the Petition and other important information. How you notify (serve) your spouse can vary with what path your divorce will take. If you both are in agreement and the the action is uncontested, you can serve your spouse personally by having him/her sign the Appearance and Consent form. If you intend to serve your spouse by mail, you would use both the Summons and Notice of Summons forms.

Once your spouse is served, you must wait 30 days if service was done in person and 23 calendar days if service occurred by mail. The state imposes the waiting period to allow cooler heads to prevail.

A hearing before a judge will be scheduled, where you (and your spouse if s/he chooses to attend) will be asked questions by the judge, to ascertain that you understand the process and its implications. The judge could sign the divorce decree at that hearing, or sign it later and have it mailed to you, depending on the judge and the county.

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Enforcement

When a marriage ends, the court will make Alt Textorders about assets and debt, financial support, and (for those that are parents) parenting time. Those orders can be a result of an agreement (settlement) by the parties, a resolution using mediation or collaboration, or by decision from the judge. In the final divorce decree, the court will resolve:

  • Child Support
  • Parenting Time (Visitation)
  • Child Custody
  • Spousal Support (Alimony)

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Custody order made in another state

A court in this state has a duty to enforce a custody determination made in another state if the court in that state exercised jurisdiction in substantial conformity with the Uniform Child-Custody Jurisdiction and Enforcement Act or if the determination was made under factual circumstances meeting the jurisdictional standards of that act and the determination has not been modified in accordance with that act.  A court of this state may utilize any remedy available under other law of this state to enforce a child-custody determination made by a court of another state. [Section 40-10A-303]

Warrant to take physical custody of child – Upon the filing of a petition seeking enforcement of a child-custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this state.

If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this state, it may issue a warrant to take physical custody of the child.

You will get ONE shot at winning custody – Learn How Here

A warrant to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.

[NM Stat § 40-10A-311]

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Grounds For Divorce

G rounds for divorce in New Mexico are:Grounds for divorce
  • incompatibility
  • cruel and inhuman treatment
  • adultery, or
  • abandonement. Essentially, one can receive a no-fault divorce via the incompatibility assertion, or one can choose to file fault charges
[New Mexico Statutes - Article 4 - Sections: 40-4-1, 40-4-2]
Want to read what we consider to be the Best Guide On Custody Matters?
The guide is FREE, written for Dads, but Moms should read this too. Before you go into battle, be sure you have the right defensive and offensive tools. Do not get surprised or blindsided. Study the Guide, own an online Parenting Plan and you should be covered for anything they throw at you

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Legal Separation

A legal separation agreement is Separationa written contract dividing your property, describing your rights and settling issues such as spousal and child support, alimony, disposition of assets and child custody. The legal separation (sometimes referred to as a marital separation) allows the parties to live separate lives, resolving all issues between them except marital status. The legal separation can be converted to a dissolution by either party upon application to the court. Legal separation is most often pursued when one of the parties wants to stay married for religious reasons, wants the advantage of deductibility of spousal support payments for income tax reasons, wants to maintain various insurance coverage’s, or do not want to wait the state statutory waiting period for termination of marital status.

You will get ONE shot at winning custody – Learn How Here

There is no time requirement before a person can file for a legal separation in New Mexico. One could move to this state and file for the separation the next day. In contrast, filing for divorce requires residency in this state for at least 6 months. However, just as in a divorce procedure, the children of the marriage must have established this state as the home state (lived here 6 months or more) in order to settle custody, support and visitation issues in the legal separation petition.

Reasons to choose a legal separation versus a divorce can include wanting time to decide whether to divorce or not, or for religious reasons, or to maintain health insurance for a spouse with serious health issues.

To get a divorce after a decree of legal separation has been issued requires the filing of a separate case, and may request of the court that issues settled in the separation (custody, support, property and debt) be handled differently.

Reduce the conflicts that come with changing kids schedules

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Mediation

W hile not mandatory, courts in this state Divorce mediationmay require the parties to complete a domestic relations mediation program to assist the court, parents and other interested parties in determining the best interests of the children involved in domestic relations cases. Parents may also request of the court the services of the domestic relations mediation program for consultations, evaluation or mediation. The parents would pay the cost of the domestic relations mediation program.

[NM Stat § 40-12-5]

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Modification Of Court Orders

M odification of child support orders - Modification of court ordersA court may modify a child support obligation upon a showing of material and substantial changes in circumstances subsequent to the adjudication of the pre-existing order. There will be a presumption of material and substantial changes in circumstances if application of the child support guidelines would result in a deviation upward or downward of more than twenty percent of the existing child support obligation and the petition for modification is filed more than one year after the filing of the pre-existing order.

All child support orders must contain a provision for the annual exchange of financial information by the obligor and obligee upon a written request by either party.  The financial information to be furnished must include:

  • federal and state tax returns, including all schedules, for the year preceding the request;
  • W-2 statements for the year preceding the request;
  • Internal Revenue Service Form 1099s for the year preceding the request;
  • work-related daycare statements for the year preceding the request;
  • dependent medical insurance premiums for the year preceding the request; and
  • wage and payroll statements for four months preceding the request.

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Prevention of Family Violence
  • A victim of domestic abuse may petition the court under the Family Violence Protection Act for an order of protection
  • The petition will be made under oath or will be accompanied by a sworn affidavit setting out specific facts showing the alleged domestic abuse
  • The petition will state whether any other domestic action is pending between the petitioner and the respondent
  • If any other domestic action is pending between the petitioner and the respondent, the parties will not be compelled to mediate any aspect of the case arising from the Family Violence Protection Act unless the court finds that appropriate safeguards exist to protect each of the parties and that both parties can fairly mediate with such safeguards
  • An action brought under the Family Violence Protection Act is independent of any proceeding for annulment, separation or divorce between the parties
  • Remedies granted pursuant to the Family Violence Protection Act are in addition to and shall not limit other civil or criminal remedies available to the parties.

Standard simplified petition forms with instructions for completion will be available to all parties.  Law enforcement agencies will keep such forms and make them available upon request to alleged victims of domestic abuse.

Will the Ex manipulate you with the kids’ schedule?

Order of protection/restraining orders – when the court makes a finding that domestic abuse has taken place, the court will enter an order of protection ordering the restrained party to refrain from abusing the protected party or any other household member. The court may:

  • grant sole possession of the residence or household to the protected party during the period the order of protection is effective or order the restrained party to provide temporary suitable alternative housing for the protected party and any children to whom the restrained party owes a legal obligation of support;
  • award temporary custody of any children involved when appropriate and provide for visitation rights, child support and temporary support for the protected party on a basis that gives primary consideration to the safety of the protected party and the children;
  • order that the restrained party shall not initiate contact with the protected party;
  • restrain a party from transferring, concealing, encumbering or otherwise disposing of the other party’s property or the joint property of the parties except in the usual course of business or for the necessities of life and require the parties to account to the court for all such transferences, encumbrances and expenditures made after the order is served or communicated to the restrained party;
  • order the restrained party to reimburse the protected party or any other household member for expenses reasonably related to the occurrence of domestic abuse, including medical expenses, counseling expenses, the expense of seeking temporary shelter, expenses for the replacement or repair of damaged property or the expense of lost wages;
  • order the restrained party to participate in, at the restrained party’s expense, professional counseling programs deemed appropriate by the court, including counseling programs for perpetrators of domestic abuse, alcohol abuse or abuse of controlled substances; and
  • order other injunctive relief as the court deems necessary for the protection of a party, including orders to law enforcement agencies. [NM Stat § 40-13-5]

[NM Stat § 40-13-3, 40-4-11.4]

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Parenting Plans

I n divorce and separation cases Parenting planswhere minor children are involved, the court will accept a parenting plan either from the parents, from a mediation process attended by the parents, or by the court itself. The court can choose to adopt one parent’s plan, combine the plans of both parents, or construct one without using either parents plan.

When joint custody is awarded, the court will approve a parenting plan for the implementation of the prospective custody arrangement prior to the award of joint custody. The parenting plan must include a division of a child’s time and care into periods of responsibility for each parent. It may also include: 

  • statements regarding the child’s religion, education, child care, recreational activities and medical and dental care;
  • designation of specific decision-making responsibilities;
  • methods of communicating information about the child, transporting the child, exchanging care for the child and maintaining telephone and mail contact between parent and child;
  • procedures for future decision making, including procedures for dispute resolution; and
  • other statements regarding the welfare of the child or designed to clarify and facilitate parenting under joint custody arrangements.

Will the Ex manipulate you with the kids’ schedule?

In a case where joint custody is not agreed to or necessary aspects of the parenting plan are contested, the parties will each submit parenting plans. The court may accept the plan proposed by either party or it may combine or revise these plans as it deems necessary in the child’s best interests. The time of filing of parenting plans will be set by local rule. A plan adopted by the court will be entered as an order of the court.

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Dividing Marital Property

Y ou will be afforded the opportunity Alt Textto put together a divorce settlement with your spouse without interference from anyone. Should you be unable to reach a divorce agreement on assets and liabilities, the court will determine the division. New Mexico is a community property state. The simple definition is that marital property will be divided equally. A married couple own their property, assets, and income jointly. A more complicated detail involves tax filings.

When married couples file separate returns, they must follow their state rules for community income. Each spouse analyzes his or her income to determine how much of their income comes from or contributes to the marital community and what portion is personal. Each spouse would then report half of their community income and all of their separate income, and report half of their community deductions plus all of their separate deductions.

The court can order a division of assets both during and after the proceedings. Prior to the final decree, the court may recognize the need of one party to have access to assets so that they may efficiently prepare and present their case.

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At a final hearing, the court 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:

  • rehabilitative spousal support that provides the receiving spouse with education, training, work experience or other forms of rehabilitation that increases the receiving spouse’s ability to earn income and become self-supporting. The court may include a specific rehabilitation plan with its award of rehabilitative spousal support and may condition continuation of the support upon compliance with that plan
  • transitional spousal support to supplement the income of the receiving spouse for a limited period of time; provided that the period shall be clearly stated in the court’s final order
  • spousal support for an indefinite duration
  • a single sum to be paid in one or more installments that specifies definite amounts, subject only to the death of the receiving spouse, or
  • a single sum to be paid in one or more installments that specifies definite amounts, not subject to any contingencies, including the death of the receiving spouse

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[New Mexico Statutes - Article 4 - Sections: 40-3-8, 40-4-7]

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Relocation Of A Child’s Home

T he following guidelines apply to Child moving awaymajor changes in a child’s life:
  • if either parent plans to change his home city or state of residence, he will provide to the other parent thirty days’ notice in writing stating the date and destination of move
  •  the religious denomination and religious activities, or lack thereof, which were being practiced during the marriage should not be changed unless the parties agree or it has been otherwise resolved
  • both parents will have access to school records, teachers and activities. The type of education, public or private, which was in place during the marriage should continue, whenever possible, and school districts should not be changed unless the parties agree or it has been otherwise resolved
  • both parents will have access to medical and dental treatment providers and records. Each parent has authority to make emergency medical decisions. Neither parent may contract for major elective medical or dental treatment unless both parents agree or it has been otherwise resolved
    There is no presumption in favor of or against relocation. Courts apply best interest factors used in custody cases set forth at N.M. Stat. Ann. § 40-4-9(A).Jaramillo v. Jaramillo, 113 N.M. 57, 823 P.2d 299 (1991)
  • both parents may attend the child’s public activities and both parents should know the necessary schedules. Whatever recreational activities the child participated in during the marriage should continue with the child’s agreement, regardless of which of the parents has physical custody. Also, neither parent may enroll the child in a new recreational activity unless the parties agree or it has been otherwise resolved. [NM Stat § 40-4-9.1]

You will get ONE shot at winning custody – Learn How Here

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Alimony

I n proceedings for the dissolution of marriage, Alimony or Spousal supportseparation or support between husband and wife, the court may make an allowance to either spouse of the other spouse’s separate property as alimony (also referred to as spousal support or maintenance) and the decree making the allowance shall have the force and effect of vesting the title of the property so allowed in the recipient.

[New Mexico Statutes - Article 4 - Sections: 40-4-7]

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Visitation (Parenting Time)

T he couple has the opportunity to Parenting timefashion a visitation schedule or a parenting plan between them during the process of getting a divorce or legal separation. In particular, the visitation will cover the time the children spend with the non-custodian and the details about those times.

If the couple is unable to agree on a visitation schedule, the court will impose one. Typical in a visitation agreement are allowances for the following: alternate weekend visitation (3-day weekends included), mid-week visitation, sharing of the children during periods of school recess -winter, spring and summer, New Year’s Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years, Father’s Day with Father, Mother’s Day with Mother, alternate years on the children’s birthdays, and open communication by phone and computer.

Want to read what we consider to be the Best Guide On Custody Matters?
The guide is FREE, written for Dads, but Moms should read this too. Before you go into battle, be sure you have the right defensive and offensive tools. Do not get surprised or blindsided. Study the Guide, own an online Parenting Plan and you should be covered for anything they throw at you
Whether the agreement is constructed by you and your spouse, or it is done by the court, you’ll want to be certain these issues are addressed: Be as specific as you can including the right language in your agreement. How is the decreed custody defined? What are the rights and responsibilities? Who has legal custody? Which holiday does the child spend with you? What time and where may the other parent pick the child up? What time should the child be returned home? What is the procedure to follow if either of you are running late and won’t be there on time? How much notice should you be given if they are planning a vacation? How far away may the other spouse move? What about future partners? Should those partners stay overnight in front of the children? Put together an on-line Parenting Plan and eliminate the arguments.

Will the Ex manipulate you with the kids’ schedule?

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Child Support

S tate laws require that you submit Child supporta parenting plan (which includes child support amounts) to the court in petitions for separation or divorce involving minor children. And yes, this plan must be jointly agreed to by you and the soon-to-be-ex. If you can’t agree, or if either of you refuses to participate, the court has a plan, and it will likely be less than what you bargained for. So…hammer out an agreement. New Mexico divorce laws provide a calculation of child support based on the income shares model, which dictates that both parents incomes be factored in. A proportionate amount of the total owed will be assigned to each parent.

Save yourself the hassle by downloading divorce forms here

The court may require the use of differing parenting plans. The parties will need to check with the clerk of the court to determine the appropriate form prior to completing a parenting plan. You can create a Parenting Plan and transfer your information to the court’s form. The cost of providing medical and dental insurance for the children of the parties and the net reasonable child-care costs incurred on behalf of these children due to employment or job search of either parent will be paid by each parent in proportion to his income, in addition to the basic obligation.

Want to read what we consider to be the Best Guide On Custody Matters?
The guide is FREE, written for Dads, but Moms should read this too. Before you go into battle, be sure you have the right defensive and offensive tools. Do not get surprised or blindsided. Study the Guide, own an online Parenting Plan and you should be covered for anything they throw at you
New Mexico child support may also include the payment of the following expenses not covered by the basic child support obligation:

  • 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
  • Any extraordinary educational expenses for children of the parties; and transportation and communication expenses necessary for long distance visitation or time sharing. In shared responsibility situations, each parent retains the percentage of the basic support obligation equal to the number of twenty-four-hour days of responsibility spent by each child with each respective parent divided by three hundred sixty-five
How to directly receive support payments

Custodial parents will have the opportunity to enroll for New Mexico’s Prepaid Debit Card and receive their child support payments on the cards instead of waiting for the child support checks to arrive through the mail. The money owed to you goes directly to your card account and the card is as good as cash. You can use your NM Prepaid Debit Card for everyday purchases anywhere Visa debit cards are accepted: grocery stores, pharmacies, child care centers, dental offices, kid’s stores, restaurants, and online for mail order and catalog purchases. You can also use your card to get cash at ATMs, but remember funds are limited to the amount of your child support payments and are deducted for every purchase or withdrawal.

If a marriage separation has been granted, the court may make such further orders for the support and maintenance of either spouse and for the support, maintenance, and education of minor children, by either spouse, or out of the property of either spouse, as the court deemed appropriate. Those children must be afforded the same rights, protections and parental financial support, including that the children are not considered illegitimate offspring of the parents, that other children of the state receive.

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Child support ends

New Mexico child support ends once the child reaches age 18, or age 19 if still in school

[New Mexico Statutes - Article 4 - Sections: 27-2-27, 40-4-7, 40-4-11]

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