In any case in which a judgment or decree will be entered awarding the custody of a minor (divorce and separation), the district court will, if the minor is under the age of fourteen, determine child custody in accordance with the best interests of the child. Parents are offered the chance to agree on a Parenting Plan or Child Custody Agreement, and if they should fail to agree, the court has its own plan to impose. In either case, the court will consider all relevant factors including, but not limited to:
- the wishes of the child's parent or parents as to his custody,
- the wishes of the child as to his custodian,
- 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,
- the child's adjustment to his home, school and community, and
- the mental and physical health of all individuals involved.
When parents agree to one form of custody, the court will award that form of custody unless it finds that form is not in the best interests of the child. The court may, in addition to the factors listed above, consider the following factors in its decision:
- 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, including arranging for the child's care by others as needed,
- 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;,
- 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,
- 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,
- the suitability of a parenting plan for the implementation of joint custody, preferably, although not necessarily, one arrived at through parental agreement,
- geographic distance between the parents' residences,
- willingness or ability of the parents to communicate, cooperate or agree on issues regarding the child's needs, and
- whether the court has found evidence of abuse. If the court has found abuse, it will detail why its award of custody will protect the child from further abuse.
Family law in New Mexico 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.
Download New Mexico Divorce Forms
[New Mexico Statutes - Article 4 - Sections: 40-4-9, 40-4-9.1]
An marriage annulment of a marriage in New Mexico renders the marriage void, illegal and should never have taken place. The process of getting an annulment (sometimes referred to as a marital annulment) is similar to dissolutions and separations in that one petitions the court and serves the other party. Annulments tend to be more difficult to obtain because one must prove grounds for annulment existed. Grounds for an annulment in New Mexico include:
Fraud - If your spouse has married you by employing fraud or misrepresented him or herself, you can get annulment under New Mexico annulment laws,
Physical Disability - According to New Mexico annulment laws, you can file for annulment if your spouse has some physical disability and it is adversely bearing on your marriage,
Duress - If you have been threatened or forced into a marriage, you can obtain annulment according to New Mexico annulment laws,
Mental Incapacity - Under New Mexico annulment laws, annulment is legal 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]
New Mexico divorce laws require that you submit a 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.
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.
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.
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 (sometimes referred to as a marital separation or legal separation) has been decreed, 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.
In a New Mexico divorce, in cases where a marriage annulment or marital annulment is sought and there are children of the marriage, that those children 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.
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]
The divorce laws in NM allow that a legal separation is recognized in this state. If a husband and wife permanently separate, either may start proceedings in the district court for the determination of property division, child custody and support, or alimony.
A legal separation agreement is a 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 be afforded the opportunity to 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.
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.
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.
Lock up the assets
If you think your spouse might try to hide assets, or spend them, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.
[New Mexico Statutes - Article 4 - Sections: 40-3-8, 40-4-7]
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 (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. You may realize that we all need some help processing all this angst. The help can come in the form of friends, relatives or professionals. If you're not inclined to approach family or friends, and unwilling to pay for professional counseling, the next best step would be educating yourself, through reading.
[New Mexico Statutes - Article 4 - Sections: 40-4-7]
The couple has the opportunity to fashion 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.
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.
According to NM divorce laws, at least one of you must have established New Mexico residency (lived in the state for at least six months before filing an action to end a marriage). As is the case in all other states, military personnel may file in New Mexico as long as they have met the six month threshold despite being residents of another state.
[New Mexico Statutes - Article 4 - Sections: 40-4-5]
A minimum of thirty (30) day waiting period after the service of the complaint must have elapsed before the court will grant a divorce (excluding hardship cases). There are no provisions to restrict one from getting re-married following a NM final divorce decree, although you may wish to give another marriage more consideration. After all, if it's meant to last a lifetime, a few months won't make a difference.
There are no restrictions against remarriage following a divorce decree.
While not mandatory, New Mexico divorce laws allow its courts to have the latitude to require the parties complete a domestic relations mediation program. The parents would pay the cost of the domestic relations mediation program. Marriage counseling is not integrated into the divorce process, but should be considered by most parties.
Federal law opens the door to petitioning of the court by grandparents seeking visitation. The district court can grant visitation privileges to a grandparent of a minor child (that does not conflict with the child's education or prior established visitation or time-sharing (privileges). New Mexico divorce laws reaffirm this right.
New Mexico laws detail the considerations a court may make:
- any factors relevant to the best interests of the child,
- the prior interaction between the grandparent and the child,
- the prior interaction between the grandparent and each parent of the child,
- the present relationship between the grandparent and each parent of the child,
- time-sharing or visitation arrangements that were in place prior to filing of the petition,
- the effect the visitation with the grandparent will have on the child,
- if the grandparent has any prior convictions for physical, emotional or sexual abuse or neglect; and
- if the grandparent has previously been a full-time caretaker for the child for a significant period.
A Word On Your Journey Toward Healing And Recovery ...
At some point in the process, you may discover that you will not be able to manage the divorce recovery all by yourself. If you are a man, you are apt to bury the hurt and anguish and force yourself to Move On. However, unresolved feelings are just that- unresolved, and are likely to become issues later on. If you are a woman, you will feel the process more, and likely will experience a feeling of loss while feeling lost. We recommend you spend time discovering why things worked out as they did, so that you grow with the new knowledge. We offer a myriad of tools that can get you to the other side. The more you learn, the less you fear. Trust us on this. Spend some time and a few bucks and the return will be ten-fold.