New Mexico code § 40-4-1. Dissolution
of marriage. Grounds
On the petition of either party to a marriage, a district court may decree a dissolution of marriage on any of the following
grounds:
A. incompatibility;
B. cruel and inhuman treatment;
C. adultery; or
D. abandonment.
New Mexico divorce statutes 40-4-2. Incompatibility.
Incompatibility exists when, because of discord or conflict of personalities, the legitimate ends of the |
marriage relationship are destroyed preventing any reasonable expectation
of reconciliation. 40-4-3. Proceeding for division of property, disposition of children or alimony without the dissolution
of marriage.
Whenever the husband and wife have permanently separated and no longer live or cohabit together as husband and wife,
either may institute proceedings in the district court for a division of property, disposition of children or alimony, without
asking for or obtaining in the proceedings, a dissolution of marriage.
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New Mexico code § 40-4-5. Dissolution
of marriage; jurisdiction; domicile.
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. As used in this section, "domicile" means that the person to whom it applies:
A. is physically present
in this state and has a place of residence in this state;
B. has a present intention in good faith to reside in this state
permanently or indefinitely; C. provided further, 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; and
D. provided further, any person who had resided continuously
in New Mexico for at least six months immediately prior to his or his spouse's entry into any military branch of the United
States government, who is stationed or whose spouse is stationed at any military base or installation outside of New Mexico
and who has a present intention in good faith to return and to reside in this state permanently or indefinitely, shall for
the purposes hereof, be deemed to have a domicile of the state and county of his residence immediately prior to his or his
spouse's entry into the military branch.
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New Mexico code § 40-4-7.
Proceedings; spousal support; support of children; division of property.
A. In any proceeding for the dissolution
of marriage, division of property, disposition of children or spousal support, the court may make and enforce by attachment
or otherwise an order to restrain the use or disposition of the property of either party or for the control of the children
or to provide for the support of either party during the pendency of the proceeding, as in its discretion may seem just and
proper. The court may make an order, relative to the expenses of the proceeding, as will ensure either party an efficient
preparation and presentation of his case.
B. On final hearing, the court:
(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 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; (b) 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; (c) spousal support for an indefinite
duration;
(d) 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 (e) 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;
(2) may: (a) modify and change any order in respect
to spousal support awarded pursuant to the provisions of Subparagraph (a), (b) or (c) of Paragraph (1) of this subsection
whenever the circumstances render such change proper; or (b) designate spousal support awarded pursuant to the provisions
of Subparagraph (a) or (b) of Paragraph (1) of this subsection as nonmodifiable with respect to the amount or duration of
the support payments;
(3) may set apart out of the property or income of the respective parties such portion for the maintenance
and education of:
(a) their unemancipated minor children as may seem just and proper; or
(b) their children until the children's
graduation from high school if the children are emancipated only by age, are under nineteen and are attending high school;
and
(4) may make such an order for the guardianship, care, custody, maintenance
and education of the minor children, or with reference to the control of the property of the respective
parties to the proceeding, or with reference to the control of the property decreed or fund created by the court for the
maintenance and education of the minor children, as may seem just and proper. |
C. The court may order and enforce the payment of support for the maintenance
and education after high school of emancipated children of the marriage pursuant to a written agreement between the parties.
D. An award of spousal support made pursuant to the provisions of Subparagraph (a), (b), (c) or (d) of Paragraph (1) of Subsection
B of this section shall terminate upon the death of the receiving spouse, unless the court order of spousal support provides
otherwise.
E. When making determinations concerning spousal support to be awarded pursuant to the provisions of Paragraph
(1) or (2) of Subsection B of this section, 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.
F. The court shall retain jurisdiction over
proceedings involving periodic spousal support payments when the parties have been married for twenty years or more prior
to the dissolution of the marriage, unless the court order or decree specifically provides that no spousal support shall
be awarded.
G. The court may modify and change any order or agreement merged into an order in respect to the guardianship,
care, custody, maintenance or education of the children whenever circumstances render such change proper. The district court
shall have exclusive jurisdiction of all matters pertaining to the guardianship, care, custody, maintenance and education
of the children until the parents' obligation of support for their children terminates. The district court shall also have
exclusive, continuing jurisdiction with reference to the property decreed or funds created for the children's maintenance
and education.
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New Mexico code § 40-4-9.
Standards for the determination of child custody; hearing.
A. 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.
B. 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.
C. Whenever testimony is taken from the minor concerning
his choice of custodian, the court shall hold a private hearing in his chambers. The judge shall have a court reporter in
his chambers who shall transcribe the hearing; however, the court reporter shall not file a transcript unless an appeal is
taken.
New Mexico divorce statutes 40-4-9.1. Joint custody; standards for determination;
parenting plan.
A. There shall be a presumption that joint custody is in the best interests of a child in an initial custody
determination. An award of joint custody does not imply an equal division of financial responsibility for the child. Joint
custody shall not be awarded as a substitute for an existing custody arrangement unless there has been a substantial and
material change in circumstances since the entry of the prior custody order or decree, which change affects the welfare of
the child such that joint custody is presently in the best interests of the child. With respect to any proceeding in which
it is proposed that joint custody be terminated, the court shall not terminate joint custody unless there has been a substantial
and material change in circumstances affecting the welfare of the child, since entry of the joint custody order, such that
joint custody is no longer in the best interests of the child.
B. In determining whether a joint custody order is in the
best interests of the child, in addition to the factors provided in Section 40-4-9 NMSA 1978, the court shall consider the
following factors:
(1) whether the child has established a close relationship with each parent;
(2) whether each parent is
capable of providing adequate care for the child throughout each period of responsibility, including arranging for the child's
care by others as needed;
(3) whether each parent is willing to accept all responsibilities of parenting, including a willingness
to accept care of the child at specified times and to relinquish care to the other parent at specified times;
(4) whether
the child can best maintain and strengthen a relationship with both parents through predictable, frequent contact and whether
the child's development will profit from such involvement and influence from both parents; (5) whether each parent is able
to allow the other to provide care without intrusion, that is, to respect the other's parental rights and responsibilities
and right to privacy;
(6) the suitability of a parenting plan for the implementation of joint custody, preferably, although
not necessarily, one arrived at through parental agreement;
(7) geographic distance between the parents' residences;
(8)
willingness or ability of the parents to communicate, cooperate or agree on issues regarding the child's needs; and
(9) whether
a judicial adjudication has been made in a prior or the present proceeding that either parent or other person seeking custody
has engaged in one or more acts of domestic abuse against the child, a parent of the child or other household member. If
a determination is made that domestic abuse has occurred, the court shall set forth findings that the custody or visitation
ordered by the court adequately protects the child, the abused parent or other household member.
C. In any proceeding in
which the custody of a child is at issue, the court shall not prefer one parent as a custodian solely because of gender.
D. In any case in which the parents agree to a form of custody, the court should award custody consistent with the agreement
unless the court determines that such agreement is not in the best interests of the child.
E. In making an order of joint
custody, the court may specify the circumstances, if any, under which the consent of both legal custodians is required to
be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent.
F. When joint custody is awarded, the court shall approve a parenting plan for the implementation of the prospective custody
arrangement prior to the award of joint custody. The parenting plan shall include a division of a child's time and care into
periods of responsibility for each parent. It may also include:
(1) statements regarding the child's religion, education,
child care, recreational activities and medical and dental care;
(2) designation of specific decision-making responsibilities;
(3) 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;
(4) procedures for future decision making, including procedures
for dispute resolution; and (5) other statements regarding the welfare of the child or designed
to clarify and facilitate parenting under joint custody arrangements. In a case where joint custody is not agreed to or necessary
aspects of the parenting plan are contested, the parties shall 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 shall be set by local rule. A plan adopted by the court shall be entered as
an order of the court.
G. Where custody is contested, the court shall refer that issue to mediation if feasible. The court |
may also use auxiliary services such as professional evaluation by application of Rule 706 [Rule 11-706 NMRA] of the New
Mexico Rules of Evidence or Rule 53 [Rule 1-053 NMRA] of the Rules of Civil Procedure for the District Courts.
H. Notwithstanding
any other provisions of law, access to records and information pertaining to a minor child, including medical, dental and
school records, shall not be denied to a parent because that parent is not the child's physical custodial parent or because
that parent is not a joint custodial parent.
I. Whenever a request for joint custody is granted or denied, the court shall
state in its decision its basis for granting or denying the request for joint custody. A statement that joint custody is
or is not in the best interests of the child is not sufficient to meet the requirements of this subsection.
J. An award of
joint custody means that:
(1) each parent shall have significant, well-defined periods of responsibility for the child; (2)
each parent shall 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;
(3) the parents shall consult with each other on
major decisions involving the child before implementing those decisions; that is, neither parent shall 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 shall occur until the issue has been resolved as provided
in this subsection;
(4) the following guidelines apply to major changes in a child's life:
(a) if either parent plans to
change his home city or state of residence, he shall provide to the other parent thirty days' notice in writing stating the
date and destination of move; (b) 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 as provided in this subsection; (c) both parents shall 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 as provided in this subsection; (d) both parents shall 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 as provided in this subsection; and
(e) 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 as provided in this subsection; and (5) decisions regarding major changes
in a child's life may be decided by:
(a) agreement between the joint custodial parents;
(b) requiring that the parents seek
family counseling, conciliation or mediation service to assist in resolving their differences;
(c) agreement by the parents
to submit the dispute to binding arbitration;
(d) allocating ultimate responsibility for a particular major decision area
to one legal custodian;
(e) terminating joint custody and awarding sole custody to one person;
(f) reference to a master
pursuant to Rule 53 [Rule 1-053 NMRA] of the Rules of Civil Procedure for the District Courts; or
(g) the district court.
K. When any person other than a natural or adoptive parent seeks custody of a child, no such person shall be awarded custody
absent a showing of unfitness of the natural or adoptive parent.
L. As used in this section:
(1) "child" means
a person under the age of eighteen;
(2) "custody" means the authority and responsibility to make major decisions
in a child's best interests in the areas of residence, medical and dental treatment, education or child care, religion and
recreation;
(3) "domestic abuse" means any incident by a household member against another household member
resulting in:
(a) physical harm;
(b) severe emotional distress;
(c) a threat causing imminent fear of physical harm by any
household member; (d) criminal trespass;
(e) criminal damage to property;
(f) stalking or aggravated stalking, as provided
in New Mexico divorce statutes Sections 30-3A-3 and 30-3A-3.1 NMSA 1978; or (g) harassment,
as provided in Section 30-3A-2 NMSA 1978;
(4) "joint
custody" means an order of the court awarding custody of a child to two parents. Joint custody does not imply an equal
division of the child's time between the parents or an equal division of financial responsibility for the child; (5) "parent" means
a natural parent, adoptive parent or person who is acting as a parent who has or shares legal custody of a child or who claims
a right to have or share legal custody; (6) "parenting plan" means a document submitted for approval of the
court setting forth the responsibilities of each parent individually and the parents jointly in a joint custody arrangement;
(7) "period of responsibility" means a specified period of time during which a parent is responsible for providing
for a child's physical, developmental and emotional needs, including the decision making required in daily living. Specified
periods of responsibility shall not be changed in an instance or more permanently except by the methods of decision making
described under Subsection L [sic] of this section;
(8) "sole custody" means an order of the court awarding
custody of a child to one parent; and (9) "visitation" means a period of time available to a noncustodial parent,
under a sole custody arrangement, during which a child resides with or is under the care and control of the noncustodial
parent.
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New Mexico code § 40-4-12.
Allowance from spouse's separate property as alimony.
In proceedings for the dissolution of marriage, separation or support between husband and wife, the court may make an
allowance to either spouse of the other spouse's separate property as alimony 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 divorce statutes 40-4-13. Spousal support to constitute lien on real estate.
A. The decree making the allowance for spousal support to either spouse shall be a lien on the
real estate of the obligor spouse from the date of filing of a notice of order or decree in the office of the county clerk
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B. The notice of order or decree shall contain: (1) the caption of the case from which the duty of spousal support
arose, including the state, county and court in which the case was heard, the case number and the names of the
parties when the case was heard;
(2) the date of entry of the judgment, order or decree from which the duty of spousal support
arose;
(3) the current names, social security numbers and dates of birth of the parties; and
(4) each party's last known
address, unless ordered otherwise in the judgment, order or decree from which the duty of spousal support arose.
C. The notice
shall be executed and acknowledged in the same manner as a grant of land is executed and acknowledged.
D. A copy of the recorded
notice shall be sent to the obligor spouse at his last known address.
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New Mexico code § 40-12-5.
Domestic relations mediation program.
A. A judicial district may establish a domestic relations mediation program by court rule approved by the supreme court.
The district court may employ or contract with a counselor to provide consultations, evaluations and mediation in domestic
relations cases involving children.
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B. Parents may request of the court the services of the domestic
relations mediation program for consultations, evaluation or mediation. Parents shall enter the
program when ordered to do so by the court.
C. Parents shall pay the cost of the domestic relations mediation program pursuant
to a sliding fee scale approved by the supreme court. The sliding fee scale shall be based on ability to pay for the specific
service rendered by the counselor. The fees shall be paid to the district court to be credited to the fund.
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New Mexico code § Property division.
40-3-2. [Methods for holding property.]
Husband and wife may hold property as joint tenants, tenants in common or as community property
New Mexico divorce statutes 40-3-4. Contracts of indemnity; no obligation of community
property unless signed by both husband and wife.
It is against the public policy of this state to allow one spouse to obligate community property by entering into a contract
of indemnity whereby he will indemnify a surety company in case of default of the principal upon a bond or undertaking issued
in consideration of the contract of indemnity. No community property shall be liable for any indebtedness incurred as a result
of any contract of indemnity made after the effective date of this section, unless both husband and wife sign the contract
of indemnity.
New Mexico divorce statutes 40-3-8. Classes of property.
A. "Separate property" means:
(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 entered pursuant to Section 40-4-3
NMSA 1978, unless the decree provides otherwise;
(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.
B. Except as provided in Subsection C of this section, "community property" means property acquired by either or
both spouses during marriage which is not separate property. Property acquired by a husband and wife by an instrument in
writing whether as tenants in common or as joint tenants or otherwise shall be presumed to be held as community property
unless such property is separate property within the meaning of
Subsection A of this section.
C. "Quasi-community property" means all real or personal property, except separate property as
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defined in Subsection A of this section,
wherever situated, heretofore or hereafter acquired in any of the following ways:
(1) by either spouse while domiciled elsewhere
which would have been community property if the spouse who acquired the property had been domiciled in this state at the
time of its acquisition; or
(2) in exchange for real or personal property, wherever situated, which would have been community
property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.
D. For purposes of division of property incident to a dissolution of marriage or a legal separation under New Mexico divorce
statutes Section 40-4-3
NMSA 1978, quasi-community property shall be treated as community property, if both parties are domiciliaries of New Mexico
at the time of the dissolution or legal separation proceeding.
E. "Property" includes the rents, issues and
profits thereof.
F. The right to hold property as joint tenants or as tenants in common and the legal incidents of so holding,
including but not limited to the incident of the right of survivorship of joint tenancy, are not altered by the New
Mexico divorce statutes Community
Property Act of 1973 [40-3-6 NMSA 1978], except as provided in Sections 40-3-10, 40-3-11 and 40-3-13 NMSA 1978.
G. The provisions
of the 1984 amendments to this section shall not affect the right of any creditor, which right accrued prior to the effective
date of those amendments.
New Mexico divorce statutes 40-3-12. Presumption of community property;
presumption of separate property where property acquired by married woman prior to July 1, 1973.
A. Property acquired during marriage by either husband or wife, or both, is presumed to be community property.
B. Property or any interest therein acquired during marriage by a woman by an instrument in writing, in her name alone, or
in her name and the name of another person not her husband, is presumed to be the separate property of the married woman
if the instrument in writing was delivered and accepted prior to July 1, 1973. The date of execution or, in the absence of
a date of execution, the date of acknowledgment, is presumed to be the date upon which delivery and acceptance occurred.
C. The presumptions contained in Subsection B of this section are conclusive in favor of any person dealing in good faith
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New Mexico code § 40-9-2. Children;
visitation by grandparent; petition; mediation.
A. In rendering a judgment of dissolution of marriage, legal separation or the existence of the parent and child relationship
pursuant to the provisions of the New Mexico divorce statutes Uniform Parentage Act [40-11-1
NMSA 1978], or at any time after the entry of the judgment, the district court may grant reasonable visitation privileges
to a grandparent of a minor child, not in conflict with the child's education or prior established visitation or time-sharing
privileges.
B. If one or both parents of a minor child
are deceased, any grandparent of the minor child may petition the district court for visitation privileges with respect to
the minor. The district court may order temporary visitation privileges until a final order regarding visitation privileges
is issued by the court.
C. If a minor child resided with a grandparent for a period of at least three months and the child
was less than six years of age at the beginning of the three-month period and the child was subsequently removed from the
grandparent's home by the child's parent or any other person, the grandparent may petition the district court for visitation
privileges with respect to the child, if the child's home state is New Mexico, as provided in the Child Custody Jurisdiction
Act [40-10-1 NMSA 1978].
D. If a minor child resided with a grandparent for a period of at least six months and the child
was six years of age or older at the beginning of the six-month period and the child was subsequently removed from the grandparent's
home by the child's parent or any other person, the grandparent may petition the district court for visitation privileges
with respect to the child, if the child's home state is New Mexico, as provided in the Child Custody Jurisdiction Act.
E.
A biological grandparent may petition the district court for visitation privileges with respect to a grandchild when the
grandchild has been adopted or adoption is sought, pursuant to the provisions of the New Mexico divorce
statutes Adoption Act [32A-5-1 NMSA 1978], by:
(1) a stepparent;
(2) a relative of the grandchild;
(3) a person designated to care for the grandchild in the provisions
of a deceased parent's will; or
(4) a person who sponsored the grandchild at a baptism or confirmation conducted by a recognized
religious organization.
F. When a minor child is adopted by a stepparent and the parental rights of the natural parent terminate
or
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are relinquished, the biological grandparents are
not precluded from attempting to establish visitation privileges. When a petition filed pursuant to the provisions of the
New Mexico divorce statutes Grandparent's Visitation Privileges Act [40-9-1 NMSA 1978]
is filed during the pendency of an adoption proceeding, the petition shall be filed as part of the adoption proceedings.
The provisions of the Grandparent's Visitation Privileges Act shall have no application in the event of a relinquishment
or termination of parental rights in cases of other statutory adoption proceedings.
G. When considering a grandparent's petition for visitation privileges with a child, the district court shall assess:
(1)
any factors relevant to the best interests of the child;
(2) the prior interaction between the grandparent and the child;
(3) the prior interaction between the grandparent and each parent of the child;
(4) the present relationship between the
grandparent and each parent of the child;
(5) time-sharing or visitation arrangements that were in place prior to filing
of the petition; (6) the effect the visitation with the grandparent will have on the child;
(7) if the grandparent has any
prior convictions for physical, emotional or sexual abuse or neglect; and
(8) if the grandparent has previously been a full-time
caretaker for the child for a significant period.
H. The district court may order mediation and evaluation in any matter
when a grandparent's visitation privileges with respect to a minor child are at issue. When a judicial district has established
a domestic relations mediation program pursuant to the provisions of the New Mexico divorce statutes Domestic
Relations Mediation Act [40-12-1 NMSA 1978], the mediation shall conform with the provisions of that act. Upon motion and
hearing, the district court shall act promptly on the recommendations set forth in a mediation report and consider assessment
of mediation and evaluation to the parties. The district court may order temporary visitation privileges until a final order
regarding visitation privileges is issued by the court.
I. When the district court decides that visitation is not in the best interest of the child, the court may
issue an order requiring other reasonable contact between the grandparent and the child, including regular communication
by telephone, mail or any other reasonable means.
J. The provisions of the Child Custody Jurisdiction Act and New Mexico divorce statutes Section
30-4-4 NMSA 1978, regarding custodial interference, are applicable to the provisions of the Grandparent's Visitation Privileges
Act.
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The New Mexico Code that
appears here may not include all provisions of Family Law. Some redacting has occurred. You should consult NM code
or a New Mexico divorce attorney.
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