Albuquerque Divorce Lawyer Blog

Two unique facets of the New Mexico law governing divorce make the process of getting a divorce in New Mexico very different from other states. First, New Mexico does not have a waiting period that must be observed before filing for divorce. This means that parties who have been married for one day have the same standing to file a petition for dissolution of marriage (the document filed with the court that begins the divorce process) as parties who have been married for 25 years.

However, it is important to note that even though there is no official waiting period, the party filing for divorce must still meet the jurisdictional requirement of the New Mexico courts, which requires the party to have lived in New Mexico for at least six months prior to filing for divorce.

The second major difference between New Mexico and other states is that New Mexico is a No Fault divorce states. This means that the courts here will grant a divorce on the basis of incompatibility alone and do not require, for instance, that one party show that the other has committed adultery or any other wrong against the marriage.

Only one party needs to plead incompatibility for the New Mexico courts to begin the divorce process. Typically, the family law judges will not hear arguments about infidelity or bad behavior by one party unless they directly affect custody or some aspect of property and debt division essential. Neither will the court entertain counter arguments to incompatibility.

Many parties find the No Fault policy unsatisfying because the court does not hear about all of the hurtful things their spouse may have done. However, the positive side of a No Fault divorce is that embarrassing information about the parties' personal habits or sexual proclivities can be kept private and will not necessarily need to be debated in open court. For these reasons, conflict is also reduced. This too speeds up the divorce process and results in substantial reduction of emotional and financial costs to the parties.

Even though the lack of a waiting period and the policy of No Fault make the process of divorce in New Mexico somewhat simpler than other states, it is still very important that parties to a divorce proceeding consult an attorney as early as possible in the process so that they can make sure all that they understand all of their rights and responsibilities under the law.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

There are a variety of reasons why a couple might seek an annulment rather than a divorce, ranging from religious values to the fact that they just don't like the sound of the word divorce. The purpose of an annulment as opposed to a divorce is that an annulment renders a marriage void, as if it never happened, whereas a divorce dissolves the marriage. Unfortunately, those who seek an annulment in New Mexico are most likely going to be disappointed.

Unlike a divorce, which can be filed in New Mexico for any reason or no reason at all under the "no-fault" divorce doctrine, an annulment can be filed for only very limited reasons. In New Mexico, a marriage can only be annulled by the Court if the marriage violated one of the requirements for a valid marriage from the beginning of the marriage.

For instance if one of the spouses was not old enough to property consent to the marriage, then the marriage is invalid as a matter of law. A person must be 18 years old to consent to a marriage unless they are 16 or older and have parental consent. A person younger than 16 is only allowed to marry by an order of the New Mexico Children's Court. Likewise, a person may lack the mental capacity to consent. Other legal prohibitions making the marriage invalid from the inception are the presence of incest or bigamy.

The presence of fraud can also be a grounds for annulment. However, this typically relates back to one of the aforementioned criteria. While it is conceivable that another situation might lead the Court to grant an annulment on the basis of fraud, the grounds for an annulment are very narrow. Unfortunately, fraud does not include such grounds as "he/she said he/she was rich," or "he/she is a completley different person now that we are married." That's not fraud. It's just bad luck, bad taste or bad judgment.

www.CollinsAttorneys.com

In New Mexico, alimony is often referred to as spousal support and the two names are often used interchangeably. The purpose of spousal support/alimony is not necessarily to equalize income. Nor is it to punish one or the other spouses as New Mexico is a no-fault divorce state. Instead, it is used to balance income. The New Mexico Courts order alimony to insure that the spouse with less income is able to maintain a lifestyle commensurate to that before the divorce.

Spousal support/alimony is not mandatory in New Mexico, but judges will often follow the Alimony Guidelines developed by the Second Judicial District Court in Albuquerque. Most New Mexico Courts will at least consult the Alimony Guidelines in the determination of spousal support. As such, the Alimony Guidelines will provide a pretty good idea of whether your case will warrant alimony from either party.

While there are several elements the Court considers when deciding whether or not to order spousal support/alimony, the threshold determination is the length of spouses' marriage. The Court will generally not order spousal support/alimony in cases where the parties getting divorced have been married for less than ten years, absent exceptional circumstances.

If the Court determines that the length of marriage warrants further review of a party's claim for spousal support/alimony, the Court will consider other factors such as: the current income of the parties; the income earning potential of each of the parties; and the age, health, and medical needs of the parties. Though length of marriage and the income of the parties are the dominant factors, there are numerous other factors that the New Mexico Courts will consider as set forth in the Alimony Statute, NMSA 40-4-7(E).

www.CollinsAttorneys.com